Knowing is half the battle, but what do you really know before going to court about the other lawyer or the judge? Is your judge sympathetic to a particular kind of argument? Can you use this data to write your motions differently? Can you even access this type of information? Preparation goes a long way and can make or break a case . We reached out to Nicole Clark to learn more about recent trends and capabilities of legal intelligence.
What was your biggest challenge as an attorney?
Time management and managing expectations was one of the biggest challenges of litigating for me. As my caseload increased, it sometimes felt I would work all weekend or pull an all nighter only to wake up to another deadline in the morning. This made it difficult to be strategic and proactive – which for me was the joy of litigating. It wasn’t until I began to do practical legal research (focusing on understanding how my presiding judge has handled my issue in the past) that I was to stop being reactive and begin to incorporate strategic thinking into my daily workflow.
As an attorney, what did you do to prepare yourself to hearings and “battling” your adversaries?
Prepare, prepare, prepare. Battling opposing counsel in oral argument comes down to a mix of public speaking and understanding your issue better than your opponent so that you can articulate your position to the judge. I found that researching my judge before every appearance and knowing the way my particular trial court judge thought about issues and tailoring my argument and even my case law to legal authority my judge had found persuasive in the past was a massive competitive advantage.
How important it is to be strategic about how you write legal documents? Isn’t it all about what you say and not how you say it?
Ultimately being an effective trial court litigator comes down to strategy. If you aren’t thinking strategically, you’re doing your client a disservice. This means you should understand how your judge has ruled on your motion and issues in the past. Personally, I started every motion by finding an excellent and well organized ruling by a trial court judge (if I could find a ruling from my judge on the issue, this was gold) but any well articulated ruling will give you the starting blocks, structure, and case law for a successful motion. You save so much time with this approach that you can focus on being strategic in the way you present your oral argument.
How can an attorney be strategic about a case to increase his/her chances to win?
From the start of every case you should understand how trial court judges have ruled on your issue in the past. You should understand the legal threshold that is being applied to your causes of action so you understand the elements you need to prove or disprove. These are fundamental building block of your case from which all strategy and evidence should flow. Next you need to understand your judge, research their cases, research their background and tendencies. How do they rule on important motions? Are they an outlier compared to other judges in the county and state. Map your litigation strategy directly to your judge’s tendencies. Finally, research your opposing counsel. Look up what cases they have pending, what types of cases they focus on, determine how often do they handle this type of litigation. How many of these cases have they taken to trial? What motions have they brought in past cases? Did they win or lose these motions? How did they position specific issues. Understanding how they have positioned cases in the past will help you understand how they are likely to position cases in the future. These are the types of questions and early research avenues which will allow you to be proactive, be strategic and massively increase your changes of winning.
How can data (and what type) can help attorneys win cases in court?
In litigation, relying on hard data to make strategic decisions is like having the answers to the test. Using a judge’s prior ruling as an outline for a motion, making decisions on whether to ding your judge based on how many defendant’s have dinged them in the past, understanding what other cases of this type of have settled for, and even what your opposing counsel has settled these types of cases for in the past, these data points can change the entire trajectory of your case. It’s fairly simple, where one attorney has access to this type of trial court data and analytics, and the other counsel does not, its pretty clear who will have a strong competitive advantage.
What is your advice for attorneys who wants to start using data to win cases? Where to begin?
In the past, only appellate case law was available for legal research. Thus trial attorneys would need to rely on the tiny corpus of published appellate case law to navigate their trial court cases. This is no longer the case. Finally state trial court data is being made available to smart attorneys who want to do practical research and understand exactly how their judge and opposing counsel has ruled in the past and map their litigation strategies accordingly. Companies like Trellis (at the state court level) and Lex Machina (at the federal court level) are making data and analytics on trial court judges available for the first time so that attorneys can start making strategic decisions based on hard data from the start of every single case.
Although the savvy attorneys who are accessing this data are currently gaining a clear competitive advantage, the landscape is changing. As the technological capabilities increase and client expectations continue to evolve, making strategic litigation decisions with the use of hard data will ultimately become industry standard and a baseline duty of care for legal research in all trial court matters.
Nicole Clark is a business litigation and labor and employment attorney who has handled litigation in both state and federal courts. She’s worked at a variety of law firms ranging from mid-size litigation boutiques to AM100 firms, and is licensed to practice law in three states. She has defended corporations and employers in complex class action and wage and hour disputes, as well as individual employment matters ranging from sexual harassment to wrongful termination. Additionally, Nicole is the CEO and co-founder of Trellis Research, a legal analytics platform that uses AI and machine learning to provide litigators with strategic legal intelligence and judicial analytics. Nicole has an intuitive understanding of technology and is deeply committed to helping lawyers leverage technology to gain a competitive advantage and achieve a more favorable outcome for their clients.