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ANALYSIS: Litigation Analytics—A Helpful Decision-Making Tool

March 30, 2021, 9:00 AM

These days, there is much talk about the benefits of, or concerns about, emerging technologies in the legal industry. But how useful are litigation analytics to lawyers (and their clients) in everyday practice?

Analytical tools help lawyers make data-driven decisions. And, while analytics do not replace the need for attorneys to exercise their judgment and utilize their experience, these tools provide valuable information to consider when making strategic decisions. To demonstrate this use case, the following will show how litigation analytics could play a role in helping an attorney decide whether to file a motion to dismiss.

Practical Application

In Re: Juul Labs Inc., Marketing, Sales Practices, and Products Liability Litigation, is a large multidistrict litigation (MDL) pending in the U.S. District Court for the Northern District of California against e-cigarette maker Juul Labs Inc.

In the context of that MDL, Juul, the Altria Group Inc., and others filed what were characterized as a “first wave” of motions to dismiss. On Oct. 23, 2020, Judge William Horsley Orrick III considered the motions, granting them in part and denying them in part with leave to amend. Perhaps as a consequence of that ruling, the rate of complaint filings thereafter dramatically spiked.

From Oct. 2, 2019, when the MDL was transferred to the district, through September 2020, plaintiffs filed complaints against Juul at an average rate of 99 a month. After the first wave of motions to dismiss were decided, from November 2020 through February 2021, that rate in the district more than doubled to 237, peaking in December 2020 with 460 complaints filed. As seen in the graph, these cases also converged on the Northern District of California; almost all of their litigation activity was filed in or transferred to that district.

Another Tool in the Toolbox

Traditionally, before filing a motion like a motion to dismiss, an attorney would likely consider the strength of the legal argument, the attorney’s experience with similar matters, the attorney’s experience with the judge or adversary, the cost of preparing the motions, and what can be gained from either the filing or success of the motion. In some cases, maybe filing the motion will spur settlement discussions. In others, perhaps winning the motion, even in part, would streamline the claims and thereby limit the costs expended in discovery.

Now, with litigation analytics widely available to add to those traditional considerations, lawyers may also routinely consider:

- What is the grant rate of a motion to dismiss in the U.S. District Court for the Northern District of California?

- What is the grant rate of a motion to dismiss for a case with similar legal issues?

- What is the grant rate of a motion to dismiss before U.S. District Court Judge William Horsley Orrick III?

Using analytics to help answer these questions will not predict how the judge will actually decide the motion—analytics are not a crystal ball. But, analytics can provide insight into how likely the judge is to decide the motion, which is another data point to consider when advising clients on strategy.

Analyzing the Juul case as an example, at the time of this writing (analytics will shift as more motions are decided), motions to dismiss in this district are granted 54.4% of the time, a little better than a coin toss. Motions to dismiss with products liability issues filed before this specific judge, however, are only granted in their entirety 26.3% of the time. But Judge Orrick grants motions to dismiss in part 52.6% of the time, and fully denies them only 21.1% of the time. Taking these numbers together, it is less likely, in a case like Juul, that Judge Orrick would either fully deny or fully grant a motion to dismiss. Instead, he is most likely to grant in part, and deny in part.

Given what is most likely, it then comes down to what an attorney (and an informed client) determines to be most beneficial to the case. If having any part of the motion granted, and at least some claims removed, would be considered a win for the defendants, then it might be worth the risk to file. On the other hand, if a denial, even in part, potentially could open the door to an avalanche of claims, filing the motion may be deemed not worth the risk.

Balancing the Scale

Probability is not dispositive either way. An attorney still needs to use experience and research to weigh the options. What litigation analytics provides instead is something else to add to the scale when advising clients.

And, with probability tools now readily available, attorneys can easily consider this statistic and provide the information to their clients with the click of a mouse.

If you would like to learn more about how to use Litigation Analytics, see the Core Litigation Skills Toolkit.

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