The number of coronavirus-related complaints filed in federal and state courts has been skyrocketing. It is unclear how judges will apply the existing legal framework to coronavirus suits. As new COVID-19-related regulations and executive orders are passed, the rights and liabilities of existing legal relationships are actively shifting. Legal analytics can be a valuable tool for navigating this uncertain landscape — allowing you to track COVID-19 litigation trends, gain insights into effective litigation strategies, and retain and attract clients.
Legal Analytics on the Rise
Legal analytics help litigators use data to make important decisions in critical areas of their practice, including case strategy. By harnessing artificial intelligence and machine learning, legal analytics tools filter through massive amounts of data within dockets, courts and legal documents to identify specific trends and patterns. This type of data-driven analysis can help litigators develop strategies and pricing models, gain competitive insights, and attract new clients.
These competitive advantages have compelled more and more firms to adopt legal analytics as part of their business model. In its 2020 Legal Analytics Study, LexisNexis surveyed 163 large firms and found that 70% of these firms already use legal analytics, and 92% plan to increase their use in the next 12 months.
Tracking COVID-19 Litigation Trends
Using legal analytics platforms, firms can track new case filings and complaints that reference COVID-19. Assessing the number of cases caused or exacerbated by the pandemic can help a law firm project how many cases it can expect in a given practice area and deploy its staff and resources accordingly.
For example, a law firm using legal analytics could uncover that the areas of contracts and insurance have seen a meteoric rise in COVID-19 litigation or coronavirus-related complaints filed in federal district courts. Utilizing this data, the firm could strategize the most efficient allocation of its resources, hiring staff and directing funds to accommodate the demand in contract and insurance disputes.
Similarly, using a third-party legal analytics platform, a firm may discover the rising trend in employer negligence and wrongful termination complaints filed in state courts. A prudent firm could use this data to hire or allocate more employment law attorneys to ensure the firm meets the demand in that area.
Data on the number and types of COVID-19 lawsuits can also help firms notify clients of legal risks similar litigants have faced. Clients can then use this knowledge to plan and avoid litigation or mitigate their exposure. For example, the shutdown has given rise to myriad insurance claim lawsuits. A law firm representing an insurance company could use legal analytics tools to track the number and types of businesses that are bringing insurance lawsuits based on a loss of business income due to the pandemic. By analyzing the trend in the types of businesses filing complaints against similar insurers, the firm could notify its client of its liabilities and vulnerabilities. With such knowledge, an insurance company may proactively mitigate its risks and exposure by raising premium prices or implementing stricter policy coverage requirements.
With the rapid rise in COVID-19-related class-action complaints, litigation data could also prove useful in assessing the likelihood of liability arising from such lawsuits. Steven Lehotsky, chief counsel for the U.S. Chamber Litigation Center, notes his worries on the rise of “opportunistic class actions down the road.” Data trends that show a rapid increase in the same types of complaints and claims being filed against the same or similar defendants may indicate that a class-action suit may be likely as plaintiffs may seek to join similar claims under one suit.
For example, a slew of class-action lawsuits have been filed against businesses that can no longer fulfill their memberships, subscriptions and paid-for services due to coronavirus closures or stay-at-home orders. A firm may leverage legal analytic tools to determine a clustering of complaints filed against a gym refusing to honor membership cancellation policies during the stay-at-home orders. As the gym’s counsel, an attorney might use the data to recommend reassessing cancellation policies in light of the potential for a class-action suit leading to mass liability.
Insights Into COVID-19 Litigation Strategy
Third-party legal analytics platforms allow litigators to search for motions and pleading documents that mention COVID-19. Crucially, lawyers can study successful complaints, pleadings and motions to understand the types of successful and unsuccessful arguments a particular court is likely to find.
For example, the pandemic is causing a wave of contractual disputes as parties seek to breach their contractual obligations. Buyers no longer want to buy companies with plummeting valuations. Other parties simply cannot perform under their contractual obligation due to local, state or federal regulations restricting business, trade and commerce. How courts interpret force majeure and material adverse clauses has a dispositive effect on how these disputes are resolved. A law firm leveraging analytics can study legally and factually similar complaints to discern the most successful lines of argument. Based on how courts have ruled on COVID-19 cases for similarly situated litigants, lawyers can compare alternative legal arguments to assess how a court may rule on an issue. This allows lawyers to conduct a cost-benefit analysis on whether to pursue a claim or to consider alternative legal strategies. And they can confidently make data-driven recommendations to clients on the viability of a particular claim or defense.
Trend analysis of the types of filed claims can also yield valuable information on the risks clients may face in their contractual relationships. For example, a firm that represents a large cruise line operator may conduct data analysis on the types of claims defendants are making against cruise line operators. A high concentration of claims pertaining to health waivers might suggest a weakness in a contract provision that the client may want to reassess or renegotiate.
Litigation data can also be useful in predicting the action of judges and opposing counsel. Knowing how judges have ruled on a particular case and the precedent a judge uses can be essential in crafting successful arguments and litigation strategies. In a similar vein, how opposing counsel has presented its arguments in prior cases can give lawyers a competitive advantage in strategizing around strengths and weaknesses.
Client Retention and Legal Analytics
How can legal analytics give firms a competitive edge in retaining current clients and attracting new ones?
- Value. For clients, the ability to provide cost-effective services is one of the most important considerations in deciding to retain a law firm. With legal analytics tools, firms can track highs and lows in demand and efficiently allocate resources. This allows higher-level partners to focus on sophisticated, high-value work. Moreover, using analytics tools, lawyers can filter through the intense mass of legal research material in much less time, saving clients on billable costs.
- Strategy. By analyzing successful complaints or pleadings, a firm can assess likely winning arguments that have been successful in prior courts. A firm that can point to data-backed recommendations as to why a client should pursue a certain strategy has a much better chance of convincing a client to retain its services than a firm that merely focuses on legal precedent to fashion its litigation strategies.
- Liability. Data also gives firms an overhead view of the likelihood of liability in different practices areas and industries, so firms can advise where future risks and liabilities may lie. This is vital information for clients in structuring their business operations.
- Court action. Coronavirus litigation is still in its nascent stages, with uncertainty over how judges will rule. A firm that can project a court’s actions within these new legal contexts will have a clear advantage over firms who blindly enter litigation in the COVID-19 era.
Finally, it is about expertise. Attorneys who can demonstrate expertise within the changing body of legal precedent and regulatory landscape have a distinct advantage in vying for clients’ business.
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