In the 25 years that Vicki Veenker has been practicing intellectual property law, she has never felt as well prepared to litigate a case as she does right now. And she’s got the data to prove it.
“I am better equipped to figure out the right strategy,” she said. “I used to rely heavily on anecdotal information, but now I have an objective view of the litigation landscape.”
That objective view is coming from legal analytics—the use of big data sorted and filtered in ways that can help attorneys make decisions about venues, get information about judges, and figure out other factors that can influence a case’s outcome. Increasingly, patent lawyers like Veenker are turning to this data, hoping it will give them an advantage over opposing counsel in lawsuits that could be worth millions of dollars.
“Analytics inform judgment,” Veenker said. “They provide a degree of predictability we didn’t have before.”
Companies that analyze legal data are slowly changing the face of patent litigation. Analytics are giving lawyers tools to make decisions that can help them extract trends, predict behavior and strategize based on previous outcomes. In-house counsel can use analytics to figure out, for example, which attorney or law firm has the best track record in defending against biotechnology-related infringement claims. Lawyers can examine a particular judge’s rulings on cases involving “patent trolls” and find consistencies. Attorneys can discover which companies tend to go to trial and which generally settle.
“Analytics are really on the verge of transforming the practice of law—especially in intellectual property,” said Owen Byrd, general counsel of Lex Machina, a company that has been at the forefront of the legal analytics revolution.
A draft paper entitled “Lawyering in the Shadow of Data” by Drury Stevenson, a professor at the South Texas College of Law in Houston, says litigators should start taking a lesson from baseball’s “Moneyball” approach to winning. “Moneyball” is the title of a best-selling book by Michael Lewis that describes how a major league baseball manager crunched numbers and analyzed data to make judgments about players and strategy.
“Like John Henry’s Boston Red Sox, lawyers who embrace data-driven decisionmaking will gain a clear advantage over their counterparts who still cling to their Dictaphones, feather-quilled pens, and thumb-in-the-air predictions when handling their clients’ legal affairs,” he wrote in the paper.
Of course, most attorneys today are not quite so old-fashioned. They use technology in their day-to-day practice, but Stevenson argues that most of the most frequently used technologies simply help lawyers complete their typical tasks with more efficiency and convenience. Even research done with electronic databases such as Lexis and Westlaw isn’t dramatically different from the research attorneys used to do in law libraries, he notes.
Legal analytics, however, have created a fundamental shift in the practice of law by looking to statistical patterns, predictors and correlations, he writes: “For example, historical litigation data, in the aggregate might reveal a judge’s tendency to grant or deny certain types of pretrial motions, an opponent’s historical avoidance of expert witnesses, or a party’s typical timing for settlements.”
Lex Machina (Latin for “Law Machine”) extracts data from PACER, from federal district courts, from the ITC, and from the U.S. Patent and Trademark Office. It can examine all sorts of legal data, extracting information about how often a subject of litigation has been litigated, for example, and what outcomes and damages have looked like. It can look at data about a judge and help an attorney determine not only whether it would be best to get a case transferred, but also see under what circumstances a judge granted requests for a change of venue in the past. A new version of the service released last week includes actual damages awarded in every patent suit since 2000, data specific to ITC cases, graphics and personalized user pages. It also is easier to use, Byrd said.
Veenker used Lex Machina at Shearman & Sterling, where she was a partner until several months ago. But she left the firm to open her own Silicon Valley practice and said one of her first moves was to make sure she’d be able to get a subscription to the service at her new firm. “I was going solo, so I felt it was even more important that I have access to it,” she said. “I knew I’d no longer be able to just walk down the hall to ask another lawyer about past experiences with a specific judge, for example.”
Lex Machina was founded by Stanford University professor Mark Lemley and other professors in the university’s computer science department and law school. Now a for-profit company, it claims as its customers such companies and law firms as Apple Inc., Cisco Systems Inc., Microsoft Corp., Orrick Herrington & Sutcliffe, and Winston & Strawn.
While Lex Machina focuses on litigation, there are companies using legal analytics in other areas of the law. Innography, for example, is a legal analytics company that focuses on patent portfolios more than on litigation. It combs through PTO data and helps companies compare their own portfolios to figure out how to leverage their patents for licensing. It enables them to look at other companies’ patents so they can determine who the other players are in a particular technology. And it makes it easier for them to gauge whether acquiring a certain patent would strengthen their portfolio.
“These days we see more and more patents and portfolios come on the market, and companies want to know whether to bid on them and how much to pay,” said Innography’s chief executive officer and chairman John Martin. “Consortiums are dividing up and selling huge portfolios, and no one can compare 200 or more patents by hand.”
But whether the goal is to gain an advantage in litigation or for monetization, attorneys caution that legal analytics is not an end in and of itself. The data is only as good as the lawyer who uses it, they say. “You still have to use skills as an attorney, Veenker said. “The data gives you better perspective, but you still need lawyer instincts.”
Indeed, even Lex Machina’s Byrd, who is convinced that analytics will continue to transform the practice of law the way “Moneyball” has changed baseball, doesn’t believe the sophisticated tool will lessen the need for good lawyering. “Baseball has been around for a long time, so there’s a lot of data and analytics can yield great results,” he said. “But you still need great players.”