Article. Abstract:
Attorney
bargaining has traditionally taken place in the shadow of trial, as
litigants alter their pretrial behavior --- including their willingness
to negotiate a settlement --- based on perceptions of likely outcomes at
trial and anticipated litigation costs. Lawyers practicing in the
shadow of trial have, in turn, traditionally formed their perception of
the likely outcome at trial based on their knowledge of case precedents,
intuition, and previous interactions with the presiding judge and
opposing counsel in similar cases.
Today, however, technology
for leveraging legal data is moving the practice of law into the shadow
of the trends and patterns observable in aggregated litigation data. In
this Article, we describe the tools that are facilitating this paradigm
shift, and examine how lawyers are using them to forecast litigation
outcomes and reduce bargaining costs. We also explore some of the risks
associated with lawyering in the shadow of data and offer guidance to
lawyers for leveraging these tools to improve their practice.
Our
discussion pushes beyond the cartoonish image of big data as a
mechanical fortuneteller that tells lawyers who will win or lose a case,
supposedly eliminating research or deliberation. We also debunk the
alarmist clichés about newfangled technologies eliminating jobs. Demand
for lawyers capable of effectively practicing law in the shadow of data
will continue to increase, as the legal profession catches up to the
data-centric approach found in other industries. Ultimately, this
Article paints a portrait of what big data really means for attorneys,
and provides a framework for exploring the theoretical implications of
practicing law in the era of big data.