Are Good Litigators Born?

I’ve always been leery of proponents of a biological basis for intelligence [or running].

I have conceded that genetics play some role on an individual basis, but need to be activated by the environment. Measures of intelligence are far too culturally specific, and ignore many other forms of intelligence. And I wholly reject, for largely scientific reasons, attempts to correlate genetic intelligence with racial or ethnic groups.

The same holds true for great lawyers.

Some of us are born to a long line of lawyers, or have parents that are judges or legal academics. We grew up with this stuff all around us, breathing it in along with our A, B, C’s.

The rest of us have to develop these skills along the way.

On Aug. 19, 2008, I participated in a webinar by LexisNexis on A Smarter Way to Search for Litigation Intelligence. The session was led by Daniel E. Gold, a Litigation Services Specialist with LexisNexis. He demonstrated some of the information gathering features they offer with their paid research services.

Since only a small minority of court cases are published, traditional research tactics overlook the vast body of information available. Using special filters to focus on areas of law, legal researchers can save time, money and energy.

But this intelligence gathering goes even further. You can do specific querries to see if the same issue has appeared before a specific judge, or even if opposing counsel has been before this judge.

Background information on the other attorneys can be pulled, such as their specific litigaiton experience and track record, as can their associates at the firm. Information about companies that are acting as clients can be filtered too, including the kind and amount of litigation they have been involved in. Depending on the area of law, this might decide where the case is filed.

Unfortunately, sorting by appellate judge using these tools by LexisNexis are not yet available in Canada. This service would be the opposite trend to de-publishing cases. And privacy concerns may see greater restrictions in the future. Perhaps the appropriate balance would to provide such details through commercial services like LexisNexis to people who have genuine and legitimate interest in knowing the identities of litigants in previous cases.

It’s not enough for the good litigator to be articulate and charismatic. They have to have a good intelligence gathering team behind them, and that’s where the importance of good research tools (and research lawyers) come in.

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Comments

  1. Ah, yes. The difference between winning the case because one’s case should win on the law, and winning the case because, well, winning is the point of litigation, right?

    Knowing how to “game” the system is a very important skill. It’s good of the Lexis/Nexis and and Westlaw/Carswell folk to be so honest and upfront about what they’re doing, and why.

    They are honest and upfront about it, right?

    DC

  2. Perhaps the appropriate balance would to provide such details through commercial services like LexisNexis to people who have genuine and legitimate interest in knowing the identities of litigants in previous cases.

    …Or perhaps not. If the data that LexisNexis sells is entirely the product of their own research, that’s one thing. If the proposal is to limit access to the legal outcomes of the justice system to paying clients only, that’s another thing entirely. Justice must be seen to be done, by everyone. If large, powerful litigants (who are the clients of large, powerful law firms) are concerned about the public being able to track their litigation histories, the answer is not for that history to be placed behind a paywall.

    And, assuming that written reasons remain democratically-available, the kind of analysis that LexisNexis performs will most likely be reproducable by anyone who cares to write the programs. In many respects, the legal research companies are reacting to the increasing freedom of information in much the same way that music and video distributors are reacting to file-sharing — except the legal-research companies have no real legitimate proprietary claims to the information at all: they’re just accustomed to being the only game in town. As more information is added to the cloud, and search engines become more sophisticated and customizable, their business model will collapse.

  3. Tim,
    You’re assuming that the only entities wanting to protect their privacy are powerful corporations. Privacy interests are also of concern to many individual litigants who would not want personal details of their life produced in discovery to be part of the public record.

    Michelle Balagh suggested that public disclosure may encourage more settlements. I agree that it will occur, but not sure that should be the sole motivation.

    Although case reports are not solely their product, they do provide some unique contributions, i.e. headnotes. Their user license states,

    1.4 All right, title, and interest (including all copyrights and other intellectual property rights) in the Online Services and Materials (in both print and machine-readable forms) belong to LNC or its third party suppliers of Materials. You acquire no proprietary interest in the Online Services, Materials, or copies thereof. LNC makes no claim to ownership of copyright in text that is in the public domain or is subject to Crown Copyright, but you agree nevertheless not to download, print or use such materials except in accordance with the terms and conditions set forth herein.

    Other proprietary legal services have similar conditions.

    Perhaps a better distinction then would be public vs. “privately” reported cases, the former serving the interests you mention, the latter, which are obviously more in-depth, maintaining these privacy concerns simply by limiting who obtains such licenses. Major cases such as the SCC are routinely published openly; I can’t see as much utility for every minor family squabble.

    The real point of this post though was that commercial legal databases exist because they provide a service that works. If free ones are on the market, that just gives them a better incentive to be better. The tools described here are one example of ways they can improve.

  4. You’re assuming that the only entities wanting to protect their privacy are powerful corporations. Privacy interests are also of concern to many individual litigants who would not want personal details of their life produced in discovery to be part of the public record.

    I wasn’t clear: My reference to corporations was informed by my personal observation that large, powerful law firms (animated by large, powerful corporate clients) are the engines that drive most significant changes in the profession – because of the influence those same firms have within provincial Law Societies and the judiciary. Similarly, firms that drop hundreds of thousands of dollars yearly into commercial research resources like LexisNexis are much more likely to have the ear of those resources than is the neighbourhood law office working on a pay-as-you go plan.

    I agree completely that personal privacy is a concern for everyone, and always has been. Now that public access to judgments and written reasons is so much easier (thanks to the Web), personal privacy will become that much more of an issue.

    I don’t think there is much public or democratic value in preserving the right for everyone to know who did what to whom in a messy divorce, or in a back-fence dispute between neighbours. My concern is instead with the erosion of what is presently one of the few means to learn what large, powerful corporations are actually doing. I don’t want to see corporate accountability suffer behind a smokescreen of concern for personal privacy. Perhaps a distinction between the privacy of real and imaginary persons would be appropriate here.

    As for the value-added aspects of commercial reporters, certainly in the near future these will continue to be available only to those who can pay for the services. However, I don’t think there is much room left for improvement, as you put it, unless the commercial reporters hijack the technology itself. The technology to automate the production of headnotes (for example) will continue to improve, and since that technology will have much wider application (in parsing communication more generally as part of advancement in the fields of human-machine interaction and artificial intelligence research), it is unlikely that commercial legal reporting services will end up controlling that technology.

    I think.