I spent a good part of my professional life trying lawsuits. So when I saw the recent AI Guide for Litigators from the Thomson Reuters Institute (TRI) and ILTA, I paid attention. I’ve generally found TRI’s work to be insightful. It is typically free of thinly disguised sales pitches found in much of the supposedly substantive content offered by vendors.
TRI’s Guide rightly notes that AI tools can be used at virtually any stage of litigation. But the description of AI use in early case assessment (which TRI calls ECA) and outcome analysis (both of which I’ve always heard described as front-end loading) stood out for me. It could indeed be AI’s highest and best use in litigation.
TRI’s Guide
Here’s how TRI describes what AI can do at this early stage:
· Analyze large volumes of materials to assess a matter’s scope, facts, and likelihood of success.
· Pre-litigation case assessment, comparing the current matter against historical precedents.
· Identify key custodians and timelines.
· Inventory and characterize matters of fact or law potentially relevant to the case.
· Highlight patterns, gaps, inconsistencies, or other anomalies in evidence.
· Identify advantageous arguments, venues, and courts.
Why did this stand out? Because in my view, this initial stage of any case is the most important one to get right. But it is often the one that clients balk at paying for.
ECA. It’s Critical
Why do I say it is the most important? Because if you get this correct, it provides you with the vision and strategy for the rest of the case. It helps you formulate your themes. It will expose your case’s strengths and weaknesses. From the beginning.
I learned over the years that knowing this can help you determine how the case should best end. Is it a case to be settled? When? And, most importantly, at what number? Or is it one that has to be tried? If done right, it will reveal what your client really hopes to achieve. The true objective.
ECA will determine your relationship with other defendants, if any. It enables you to direct the client where the case will be going and what to expect. It will form the basis of determining who and what type of expert witnesses you will need. It will help you identify who you need to depose. It will determine your motion practice and the timing of motions. It will guide you in determining the relevant documents and enable you to master those documents.
I had some pretty good mentors along the way. One used to say the first thing he would do when a case came in the door was to draft the jury instructions. Another would spend a couple of hours looking out the window thinking before he did anything. Both used these techniques to guide their underlying approach for the rest of the case.
What these mentors were trying to do was in fact the very early case assessment and outcome analysis that the Litigation Guide discusses. They were front-end loading.
Those Pesky Clients
But pre-AI, front-end loading took time. A lot of time. And that was the rub. Often, clients would tell me they did not want to pay for the time needed to do the kind of analysis that I thought needed to be done at the outset of the case.
Why? Several reasons, all related to cost. Some clients were in denial, thinking maybe the case would go away, so why pay for the work. Or that the plaintiff’s lawyer would not put in the time to pursue it or pursue it well. Or was not capable. Some believed that the exposure did not justify the time needed to do a good early analysis. Some figured the work could just be done later if it proved necessary or it could be spread out. The “one step at a time” approach.
The High Cost Of Back-End Loading
All of which was wrong, of course. Later always adds costs. And not doing a robust early case analysis and trying to catch up with back-end loading inevitably leads to more time and cost. Not doing it often digs you into a hole that is expensive and difficult to get out of.
I took over a case once because the existing lawyer did not do this kind of early analysis. He allowed his first witness to be deposed early in the case without doing the work needed. His intuition was that his case was pretty strong, and he thought he would save the client costs. (Or maybe he was just lazy.)
His intuition held up right until the time the plaintiff’s lawyer slid a document across the table. A document the defense lawyer hadn’t found. A document he hadn’t vetted with the client and its witness. A document that looked deadly and for which the witness could offer no explanation. I can only imagine how the faces of the witness and the lawyer dropped when that one showed up.
Now the case had a serious problem. We recovered, but it took a lot of work and rehabilitation later on. Overall costs skyrocketed. Never saw that previous lawyer again, by the way. Early work is critical.
Enter AI, Stage Right
So what does this have to do with the TRI Guide and AI? It’s simple. AI can substantially reduce the cost and time of doing this front-end work. It can do things like help create an initial chronology, identify key legal issues, match claims to evidence, identify critical witnesses, develop a litigation plan, assess expert witness needs and identification, evaluate motions that could be filed, analyze damages, and identify key documents. Good and bad. What do we know? What do we not know?
And perhaps most important for the clients, it can help develop a litigation budget. A budget based on an actual strategy instead of somebody pulling numbers out of thin air and hoping the client doesn’t ask too many questions.
Not only can this kind of assessment be made at a fraction of what it used to cost, but it can also save costs throughout the litigation. Identify key issues and witnesses early and maybe you conclude you don’t need 25 depositions. You instead need fewer and more pointed depositions and more pointed discovery. Or you decide not to waste time and money filing certain motions.
The cost savings will run throughout the litigation and enable this kind of assessment to be made in almost any case, big or small. It’s quite an advantage.
And The Human?
From this AI work, the trial lawyer can determine what really matters and what the exposure of the case really is from day one, not on the eve of trial. Which guides every other decision. So front-end loading is the most important thing you will do in litigation. And you now have a tool that will do most of the work at a fraction of the time and cost.
That leaves the lawyer to do what they do best. Looking out the window and applying their judgment and experience to all the front-end grunt work.
And that’s the real highest and best use AI can have. In any litigation.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
