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Litigation is an investment that almost always must be evaluated in terms of either return on investment or cost avoidance. Regardless of which side of the litigation table you occupy, or who your client is, you cannot make an informed decision to pursue or settle a lawsuit without first assessing the claim accurately, objectively, and in sufficient detail. A decision based on faulty or incomplete information, or one made too late in the litigation process, can cost your client a great deal of money. While there is no substitute for the experience and intuition of an expert trial lawyer, litigation-oriented technology, now affordable by firms of any size, lets lawyers assess the strengths and weaknesses of a case early and accurately. These new technologies can help attorneys decide whether to litigate or settle, as well as provide a context for litigation strategy, settlement negotiations and budget planning. LITIGATION RISK ANALYSIS The most direct valuation tool is litigation risk analysis software that generally uses a decision tree to model a potential claim, both for damages and probability of success. Decision tree analysis does not replace the information and judgment of the attorney; it provides a framework to develop the facts and decision points, as well as to evaluate the impact of different decisions in the planning process. If the decision is made to litigate rather than to settle, the tool also is valuable for structuring a strategic litigation plan and budget, based on key litigation decision points. The process always begins with gathering information and documents, reviewing evidence, researching preliminary issues, and formulating potential arguments. The attorney’s conclusion as to likelihood of success depends on many intangibles, such as the perceived strengths and weaknesses of witnesses and opposing counsel, the credibility and reputation of the parties, and the track record of the judge, plus the attorney’s experience with juries and damage awards. Before technology provided risk analysis tools, litigation assessment was primarily based on subjective evaluation. Decision tree analysis software adds substantially more objectivity to the process. Decision tree analysis starts by asking a series of questions designed to elicit both specific information about your case and general information about your legal jurisdiction. The answers provided lead you to the appropriate branches of the decision tree, where additional questions may be asked. Each issue has its own branch. Once all relevant information has been gathered for each issue, you are asked to provide the reasons why you think the judge or jury will decide for or against your position. Next, you are asked to assess the probability of success on each issue. You are able to adjust the relative weight of each factor and to quantify your probability of success, which allows you to play with the weights and easily create a variety of scenarios. Finally, you provide your best estimate of the likely range of both compensatory and punitive damages. The software takes the input for each branch and produces a probability-weighted value for each issue. All possible outcomes are quantified, along with the likelihood of each occurring. This analysis merely formalizes and documents a prudent and complete litigation assessment. The result of this analysis is the calculated valuation range for the claim, based on a probability-weighted average of all the possible outcomes captured in your decision tree. Graphic representations of all the outcomes, from best- to worst-case scenarios (along with the probability of each occurring), allow you to “see” the possibilities, evaluate the risks, and advise your client with the support of hard data (or as close to hard data as is possible in litigation). As discovery progresses, updating the decision tree analysis will help you to refine the litigation strategy and budget planning. Even if an early settlement is not contemplated, analyzing the probabilities can help direct discovery dollars into the most productive areas of inquiry by identifying high-risk issues. DOCUMENT MANAGEMENT AND REVIEW Another powerful technology available to law firms is a unique and inventive search engine (using “synthetic intelligence”) designed to quickly and cost-effectively assess litigation document databases — even very large ones. Conventional approaches to database indexing and searching are labor-intensive and therefore costly and slow. As a result, databases often cannot be thoroughly explored and analyzed to support an early “hold ‘em or fold ‘em” decision. Certain computer-based indexing and searching systems are capable of delivering a fully indexed, searchable database almost overnight for much less than the cost of human coding. This new technology can have a significant financial impact on litigation management. An actual case illustrates how having an indexed, searchable database available early in the process could have provided the same results more cost-effectively. In this medical product liability case, the plaintiff’s attorneys had human coders manually index a discovery database. Subsequent auto-coding of the same documents quickly provided substantially the same information index as the one laboriously prepared by manual coders. A “related content search” tool provided by the auto-coding process demonstrated the ability of the service to readily locate documents that had been previously identified as formal trial exhibits. This comparative test indicated that automated indexing and related content search tools would have provided a searchable database within days or weeks, rather than months, while saving the firm at least half the expense incurred by human coding. Automated indexing technology has evolved to the point where products and services can inexpensively, quickly and efficiently “read” document images and return a fully indexed database containing full OCR text. Standard data fields (author, recipient, Bates number, document type, date, etc.) are added automatically. Other fields, typically too cost-prohibitive to code from the document text (additional names and predetermined “key terms” mentioned in the text of the documents) also can be indexed. This automated indexing tool is accompanied by a unique search capability that easily and quickly locates related content in other documents. A recent innovation in searching, this tool is based on the latest research on the human brain. It mimics the human ability to see relationships and to assign meaning. The new “synthetic search” method starts from a source document and compares it to all other documents in the database in a manner similar to human analysis. This search capability can find relevant documents and place them in rank order nearly as well as a human — and significantly faster and less expensively. Because the relationship is measured on content, not on the similarity of the form, an e-mail, letter or even a spreadsheet could be the most closely related document to a structurally unrelated form, such as a memo. The synthetic-intelligence search tool allows the user to locate related documents with one point and click. It also instantly locates other document forms such as earlier or later drafts, duplicated pages, pages with unique formats like lab reports, etc. The obvious advantage for litigators is the ability to quickly find and evaluate documents, separating the must-read from the unimportant ones, eliminating duplicates, identifying drafts and adding related documents to the “must read” list. Even the most sophisticated conventional search engine lacks the ability to resolve ambiguities and perceive relationships. Litigation is the most costly means to resolve disputes in today’s environment. Clients are looking for ways to reduce these costs. Automation is cutting expenses for collecting, sorting and analyzing documents, and innovative technologies are helping litigators assess the risks of going to trial versus settling. Firms that use these tools to save clients money will have the edge in this very competitive marketplace for legal services. Robert Murrill is a practicing attorney based in Dallas who advises high-tech businesses. He also serves on the Advisory Board for Syngence LLC, a provider of fully automated document indexing and analysis services designed specifically for litigators (www.syngence.com). He can be reached at (972) 480-8800 or [email protected].

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