 |
| Ronald Levine |
Historically, lawyers have fallen short in predicting the costs and outcomes of litigation. As a result, clients have been disappointed with unanticipated costs and unexpected results. Whether they are prosecuting or defending claims, clients must be able to budget for the expenses and outcomes of litigation.
General counsel must answer to the CEOs and boards of their companies. One of their greatest fears is a surprise in litigation — whether a bill much larger than the projected cost of litigation, or an unanticipated disastrous jury verdict.
An oft-repeated refrain from general counsel to their outside litigation counsel has been, "Do not embarrass me." Once the general counsel has prepared superiors for the future course of a dispute, outside counsel must be able to deliver what they projected.
While surprises will never be completely eliminated, AI will provide new tools that can be employed to provide much greater certainty when predicting the outcome of a dispute, and significantly improve decision making in setting legal strategy.
1. Predicting the Outcomes of Litigation
Using the tools offered by AI, once selected, outside counsel will be able to better predict the outcomes of litigation and weigh litigation strategy with greater precision.
Clients should not be blindly traveling down the litigation path, but rather have an informed evaluation of a case using all data available to counsel in helping to decide the most cost-effective way to proceed.
Lawyers must go well beyond assessing a client's prospects as good or bad, and provide a much more objective assessment of the costs, potential risks and the eventual outcome of litigation.
These tools will help clients avoid throwing good money after bad in a dispute. AI will provide a well-supported calculation of overall case value before major litigation costs are incurred.
AI should be able to rapidly generate a decision-tree analysis for a client that will include:
- A list of the potential pretrial and trial issues that the court will resolve during the litigation;
- Predictions of the behavior and performance of adversaries and fact-finders to estimate the probability of outcomes on each issue;
- A determination of the dollar value for each of the possible paths the case may take; and
- The overall case value, by multiplying the probabilities along each path by its dollar value, and then summing up all the results.
In evaluating the matter, there are many data points which need to be assessed, including:
- The adversary's track record for engaging in motion practice, discovery and settlement;
- The assigned judge's history of ruling on the procedural and dispositive issues that will arise during the litigation;
- Jury awards, and appellate court decisions upholding, limiting or denying similar awards; and
- Costs that have been incurred by counsel in prosecuting or defending similar claims.
There is no reason to wait months until a dispositive motion is filed to drill down into the law and facts to weigh the prospects for a lawsuit. A well-informed early case analysis for the client will not be a luxury, but rather the accepted standard.
2. Greater Insight Into the Costs of Legal Services
Clients and outside counsel, along with many vendors, are currently utilizing AI tools to delve into the metrics that measure the performance of outside counsel.
Historically, the most prevalent use of such tools has been in the area of billing. For some time, clients have been scrutinizing invoices to look for overcharges and other inefficiencies.
Clients can also compare and contrast various outside counsel in terms of billing rates and project management and assignments.
AI can now summarize voluminous invoices so that they can be understood quickly. Clients can use AI to evaluate whether a law firm is satisfying the client's goal of obtaining the best possible result with the most effective team for the specific case at hand.
Through the use of sophisticated AI-enhanced review tools, clients can quickly review invoices for feedback on the following:
- Counsel's failure to follow the client's billing guidelines by engaging in block billing, lengthy internal conferences, charging for administrative tasks and the like;
- Wasteful research projects pursuing unnecessary issues;
- Time spent well beyond typical work required to generate similar motions and legal papers; and
- Mismatches in assigning tasks — legal work conducted by partners, for example, that should have been done by associates or paralegals.
If clients employ these tools, outside counsel will inevitably take greater care in generating their invoices.
If outside counsel also use these tools before submitting a bill to the client, they will reduce the risk that their invoices will be rejected, speed up their internal review of bills before they are issued, and be able to flag attorneys who are failing to record time in accordance with the client's guidelines.
3. Scrutiny of Outside Counsel's Adoption of AI
When conducting due diligence about potential outside counsel, clients will also focus on the firm's own use of AI legal tools. The client should explore the firm's knowledge management tools, such as a brief bank, and the firm's training in, and use of, AI legal research and writing tools.
While none of these AI tools are an end in themselves — and human intelligence and interpretation are essential — there can be no dispute that they will assist in providing a much more expeditious and informed result.
In addition to legal research, AI can play a significant role in reducing the costs of electronic discovery. Clients will want to explore the vendors and tools counsel employs to expedite the collection and review of records. Litigation papers, from discovery demands to motions, can be generated in the first instance by AI tools.
Clients will want to know whether their counsel is constantly reinventing the wheel or has a system in place to quickly create litigation papers. AI can also provide significant assistance in contract and other document management and review. Thousands of corporate records can be reviewed in a fraction of the time it would have previously taken when conducted by associates.
Since most outside counsel continue to bill by the hour, clients will also want to explore the degree to which AI is being utilized in the management, scheduling, and evaluation of outside counsel's attorneys and staff.
Currently, many law firms evaluate associate performance based upon limited objective data — e.g., billable hours — and a subjective evaluation by their superiors. AI can survey the entire work product and time records of associates, providing a much more comprehensive and complete picture of the associate's work than that provided by a busy partner, who may have had limited exposure to the associate during the course of a year.
For associates, these new tools do not need to be a one-way street. They can assist associates in exploring ways in which they can improve their own performance and advance their careers. The same AI-generated reports that will be reviewed by partners to evaluate associates can help the associates improve their time management, and highlight strengths and weaknesses as they make personal career development decisions.
AI can also assist associates in keeping track of their own work by generating time entries. Where applicable, the recording of time should consider the client's outside counsel guidelines to make sure that time is recorded in the manner in which the client has requested.
With the growing threat of security breaches, clients will also want to pay close attention to the outside counsel's use of AI to identify the potential for hacking and phishing.
Since employee education will only go so far, firms will be expected to adopt a host of AI tools related to cybersecurity. Threat-detection tools will identify and isolate anomalies that may indicate a cyberattack, and flag suspicious and fraudulent activities.
Ronald J. Levine is counsel at Herrick Feinstein LLP.
This article is excerpted from Practical Guidance, a comprehensive practice resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Practical Guidance or to sign up for a free trial, please click here.
Law360 and Practical Guidance are both owned by LexisNexis Legal & Professional, a RELX company.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
For a reprint of this article, please contact reprints@law360.com.
