Legal tech software has advanced to such a degree that legal analytics are actually a real thing. Analytics software designed to mine litigation data already exists. The software is capable of using analytics to predict everything from how judges might rule on a given case to whether or not a prosecutor’s litigation history might have any bearing on how he tries his next case.
Needless to say there are legitimate concerns over how legal analytics are used. In France, those concerns were enough to prompt the government to pass a law banning legal tech companies from using analytics to identify or predict the behavior of judges and magistrates.
The French law essentially makes using legal analytics as a prediction tool illegal. Whether or not the law is proper boils down to whether using legal analytics in certain ways is ethical. We know legal analytics are effective, but is it right to use them in certain ways?
Shopping Around for Judges
Have you ever noticed how easy it is to shop around for judges when you are looking for a particular outcome? Judge shopping is something even people outside the legal sector are fairly familiar with. Do you need a ruling that sits to the left of the political spectrum? Take your case to California. If you need a ruling that leans conservative, take it to Texas.
Shopping around for judges is one of the concerns of legal analytics. If software can mine litigation data and predict the outcome of certain cases in certain courts with any accuracy, it is reasonable to assume that attorneys would entertain using legal analytics for that very purpose.
This appears to be the concern in France. Lawmakers do not want either prosecutors or defense attorneys to be able to use big data to predict the outcome of their cases. They don’t even want attorneys using legal analytics to try to figure out how officers of the court might behave during litigation.
A Ban Not Likely Here
All eyes are now on France to see how their new law plays out. As to whether or not a similar ban would be enacted in the U.S., opinion varies. Bloomberg law contributor Sam Skolnik seems to think that such bans are not likely here. He did not explain why in a June 5 article discussing the topic.
One possible reason is the realization that big data and legal analytics have a way of making law more efficient. They also make the practice of law more competitive, according to the creators of the NuLaw case management software. Access to big data and legal analytics levels the playing field between smaller firms and their much larger counterparts.
Where It Might Go
If we can answer the ethical questions of legal analytics in such a way as to minimize concerns, the potential of the technology is quite attractive. There is a lot legal tech pioneers could do with data mining, analytics, and artificial intelligence. Where might it all go?
It is easy to imagine new case management software that utilizes analytics as a means of advising lawyers how to proceed on a given case. Those same analytics could help a personal injury attorney better define claims or a corporate attorney prepare a unique defense in an especially complicated case.
At the end of the day we know that legal analytics work. We know they are changing the way law is practiced. But are they ethical for any purpose? That is the question we have to wrestle with and answer. Unfortunately, it’s not going to be easy.