Leveling The Litigation Playing Field

In the May issue of The New Republic, Noam Cohen makes a thoughtful argument about the danger of legal technology becoming a force for inequality. His article, There’s No App for Justice, is a strong piece and I recommend that anyone who cares about law, technology, and justice read it.

At its core, Cohen argues:

“[T]he decisions of law and justice are now turning on who has the biggest computer with the best algorithm. This matters…. The law may be entering a new and dangerous phase in which technology becomes a weapon to be wielded among elite law firms.”

Cohen interviewed me for the article and the technology we’ve built at Judicata is among those for which he expresses some concern. Our own experience has been that Judicata is a force for equality, and I expressed that by saying (in a statement which Cohen quoted):

“Efficiency and justice go hand in hand.”

At Judicata we actually share Cohen’s concern about technology incorporating human biases and exacerbating inequalities. We’ve vocalized that concern before, and it’s been a motivating factor in many of our most important business and technical decisions.

But it’s not a topic we often discuss publicly, so I thought it’d be helpful to unpack my statement a bit more.

The Impact Of Advanced Technology

To understand how we’ve approached the dangers of advanced legal technology, it’s first important to understand three main ways in which new technology can shape the legal system. It can:

1. reduce the cost of legal representation;
2. raise the floor on the minimum acceptable level of legal representation; or
3. raise the ceiling on the maximum achievable level of legal representation.

Reducing the cost of representation generally enhances equality by making the system more accessible to those with less money. This is a core focus of the Access To Justice (A2J) movement.

By contrast, while raising the floor and raising the ceiling can be drivers of equality, they can also be drivers of inequality. It all depends on how the technologies are placed into the market.

Technology that raises the floor is beneficial if it raises the standard of care; but it can be problematic if it becomes a barrier to entry. That can happen if the technology is both indispensable to the proper practice of law, but priced in such a way that only the wealthy can afford it.

At the other end of the spectrum, technology that raises the ceiling can also be problematic. This happens if it provides a critical advantage that only the wealthy can access, tilting the scales of justice unfairly in their favor. This is like giving one player in the World Chess Championship an extra pawn — an incremental advantage that turns the game decisively in their favor.

At Judicata we’ve developed technologies that have all three impacts:

• reducing the cost
• raising the floor
• raising the ceiling

In each case we’ve been careful to make sure our technology is a force for equality, though how we’ve done that differs by product.

Reducing the cost of legal representation

Judicata offers two main products targeted at reducing the cost of legal representation — a search engine and a citator (a tool that identifies if a case is still good law).

Search

Our search engine was built to be the best on the market — and to also be free. Much of the legal industry was surprised to learn last year that legal search engines vary in their results and are not created equal. But California lawyers have been learning this lesson over the last few years as they’ve used Judicata to find on-point precedent faster than ever before.

A detailed analysis of our search engine showed that it beats the expensive and market-leading Westlaw search engine on 75% of queries — a dominance that many of our users noticed:

“I’m working on an opposition to a demurrer. I need law in connection with a cause of action for negligence, where the duty of care arises out of the existence of a contract between the parties. My search query was “contract negligence elements”. Westlaw found 1,397 cases — I scrolled through the first page (about 100 results). The FIRST result on Judicata was Eads v. Marks, 39 Cal 2d. 807, a Supreme Court of California case. it provided me EXACTLY the authority that I needed. The time savings of using Judicata are absolutely astonishing. Eads v. Marks was result #45 on the Westlaw search.”

Search technology matters because it helps reduce the time spent on legal research, which can be a significant part of the cost of legal representation. But faster research can also go beyond having the quantitative impact of reducing time, it can have a qualitative impact by affecting outcomes. Judicata’s search engine has a history of helping lawyers compete against — and beat — lawyers from the largest law firms in the country. A great example comes from a lawyer at a nonprofit — aptly named David — who was up against the employment law version of Goliath:

“We had one hour to address a critical question about industry standards. I found the critical case on Judicata in less than 10 minutes, which left us time to analogize and distinguish the case and, ultimately, secure a win. With only standard research tools at their disposal, several opposing attorneys from some of the nation’s largest employment law firms were unable to find the case until the end of the hour. That left them with substantially less time to craft a persuasive argument, and gave us a big advantage.”

David ultimately won his case based on the argument that Judicata helped him make. This was the impact of a free and democratizing search engine — not a tool for the elite few.

In the long run I think that legal search is a solvable problem, which means that hour-long (and multi-hour long) research will be a thing of the past. Getting there is hard, but it will be a win for society as a whole. That’s the reason we published valuable search data last year — to help all legal research providers improve their case law search.

Citator

In addition to finding relevant precedent, lawyers need to know if they can rely on the case law they find. This is where a citator comes in.

Judicata is one of only four companies that have built a reliable citator (with ours currently limited to California law). The other three companies that offer such a product are billion dollar behemoths: Thomson Reuters (via Westlaw’s KeyCite), LexisNexis (via Shepard’s), and Bloomberg (via BCite).

The resources needed to build such a citator are massive, which is why there are so few on the market. It’s also the reason the other companies charge an arm and a leg for their products. By contrast, we’ve been selling access to our citator for only $29 a month. That’s not only affordable, it’s 80–90% cheaper than what the billion dollar companies charge. And our citator is at the top in terms of quality — on par with KeyCite and far more accurate than either Shepard’s or BCite. Advanced technology is what makes this possible.

The result is that while most Judicata users simply prefer our products to those of our competitors, for some Judicata users we are the only product they can afford. These are users who were previously priced out of the citator market — even though a citator is widely regarded as a necessary tool for the provision of adequate legal representation.

Raising The Floor And Raising The Ceiling

In addition to building advanced search and citator products that reduce the cost of practicing law, Judicata has also built a game changing technology called Clerk that raises the floor and raises the ceiling on the quality of legal representation.

Cohen references some of Clerk’s functionality in The New Republic article. This includes analyzing legal briefs to identify their strengths, weaknesses, and areas for improvement. The underlying idea behind Clerk is to have software improve the quality of a lawyer’s legal representation — the service clients are paying them to provide.

On the first dimension — raising the floor — Clerk’s contribution has been eye-popping. In a recent blog post we described a Clerk analysis that shows lawyer work product is far below the level clients think they’re getting.

We used Clerk to analyze briefs from the twenty largest law firms in California and then ranked the firms according to the quality of their briefs. These were exactly the “elite law firms” that Cohen is concerned about empowering.

Our most shocking find? 40% of the law firms had misspelled the name of their judge in a brief we analyzed. One of the firms in our analysis made the mistake multiple times — misspelling the name of the judge in nearly 10% of their briefs.

Moreover, nearly every brief we analyzed misspelled case citations, misquoted case law, and relied on precedent that factually supported the opposition. These errors are generally inexcusable, but especially so when the clients are paying tens of thousands of dollars for the lawyers to research, write, and file these briefs.

Our data shows that the more errors a brief makes, the more likely it is to lose. So these elite law firms are doing a disservice to their clients by producing sloppy work.

On the other front — raising the ceiling — Clerk helps lawyers make their briefs more convincing. This includes suggesting arguments and cases to rely on, evaluating the odds of winning, and identifying ways to improve the brief (especially if it is weakly argued), which includes looking at the judge’s biases.

The big question that Cohen rightly asks is whether this type of technology serves the interest of justice and equality — or whether it serves the interest of the wealthy few.

Since the founding of Judicata our motivation has been to enable justice and equality, and it has been a driving force in many of our most important decisions. We had many long discussions about how to price Clerk so that it would be accessible to everyone. Cohen’s article doesn’t discuss pricing, but that’s a critical aspect of any evaluation of who these technologies serve.

In the end we settled on a subscription model that could satisfy the needs of everyone — both those on a tight budget, and those with an enormous war chest. We did this by offering two Clerk packages, an à la carte package, and an all-you-can-eat package.

The à la carte package is for lawyers with only a limited need, or whose clients don’t have much money to spend. It provides lawyers with a small number of Clerk analyses (“uploads”) that they can subscribe to or cancel whenever the need arises. The cost of a single Clerk upload is $140 — not an insignificant price, but a drop in the bucket compared to what clients are spending on litigation.

The all-you-can-eat package is for lawyers with substantially more need. These are lawyers who expect to use Clerk often and are willing to pay upfront for a year’s worth of use. By paying up front they get a discount, which substantially reduces the cost of a single Clerk upload.

Importantly, neither of these packages is priced outside the range of the most needy clients or lawyers, nor is it biased towards the largest law firms. In fact, we’ve found the model is most attractive to solo practitioners who can’t afford (or don’t want) to hire an associate or paralegal. As one of these users recently put it to us, Clerk is a second pair of eyes.

The Elephant In The Courtroom

There is one final point to make — one that Cohen doesn’t address in his article: the big law business model is quite distorted, to the point where most large law firms see new technology as a threat, not as a weapon to wield.

There are several reasons for this, including that they are partnerships and not corporations, they run on a cash basis, and they are publicly evaluated on a profit-per-partner metric.

But the biggest reason is the way these large law firms make money: by billing out their time. There are only two ways to grow revenue (and ultimately profit-per-partner) with such a business model: raise your hourly rate or hire more associates to bill out. Firms do both, but a huge chunk of the revenue comes from money made on the associates’ time.

Thus, another way to think of a large law firm is as a manufacturing plant that produces a product called the “associate hour.” The more “associate hours” the plant produces and sells, the more money it makes. Any new technology that reduces the number of “associate hours” reduces the plant’s revenue (which reduces the disbursement to shareholders, i.e., partners).

This is a conundrum because it represents a conflict of interest between lawyers and clients. This isn’t new — the market knows about this problem and people have been complaining about it for decades. But the model has been changing recently, with the main driver being financial pressure from clients — largely prompted by the Great Recession.

An example of this change is the litigation task of “discovery”: the job of sifting through documents to identify those relevant to a lawsuit. Fifteen years ago law firms used associates to perform discovery; today they rely on advanced software and outside contractors to do the bulk of the work. This saves clients enormous amounts of money.

Cohen mentions this shift, but his analysis of it is wrong. He says:

“[T]he shift means fewer jobs at the bottom rungs of a law firm for paralegals, who are often women — its own form of inequity.”

The job was traditionally performed by lawyers, not paralegals. These were both men and women, and they were billed out at absurdly high rates. I know…. I was one of them. An hour of my time cost clients $300.

A similar shift is happening with legal research, and a handful of companies are coming out with the goal of automating the drafting of court documents. These are tasks traditionally done by lawyers — but over the next couple decades that will change.

That’s the world into which these advanced technologies are being born. The danger posed by them is not as “weapon[s] to be wielded among elite law firms.” Rather, the danger is that the new technologies will undermine the business model of these large law firms — to the detriment of their partners, but to the benefit of their clients.

That’s a good thing for people who care about justice and equality.