The Algorithm Says You’ll Win the Case. What Do You Say?

Welcome back to the Big Law Business column on the changing legal marketplace, written by me, Roy Strom. Please continue to reach out with your reactions and commentary on this coverage!

I recently wrote a story about a young company, Ex Parte, that says it is really good at predicting who will win appeals in patent infringement cases. It also says it knows the best lawyer for specific cases.

I got a demo of the product for a real-life case involving 10X Genomics Inc., and called one of the lawyers Ex Parte said had the best odds of winning (25%). I expected this would be welcome news, but Henry Dinger was not pleased.

A longtime Goodwin Procter partner with experience in the patent appeals space, Dinger said he was more recently handling professional liability matters for the firm as its deputy general counsel.

“Lawyers can’t hold out their track record as an indication of how they’re going to do in the future, and that seems to me exactly what this AI is doing,” Dinger said. “If I held myself out the way this program you say holds [me] out, I’d be acting improperly.”

Dinger was likely referring to Rule 7.1 of the ABA’s Model Rules of Professional Conduct. It says lawyers can’t refer to their results in previous cases in a way that creates an “unjustified expectation” that they will achieve the same result for the next client.

So I asked a few lawyers who handle professional responsibility matters if they thought Ex Parte and tools like it could be used in attorney pitches. Something like: “Hi, Ex Parte says you have a 25% chance of winning this case with me as your lawyer. And that’s the highest percentage among all the lawyers in its database.”

“If you say either one of those two things in most states I’m familiar with you’re going to be in trouble,” said David Rubin, a New Jersey lawyer who has handled professional responsibility matters. (And, in full disclosure, is the father of Bloomberg Law reporter Jordan Rubin.) “You have given a client unjustified expectations.”

Michael Frisch, ethics counsel at Georgetown University Law Center, agreed.

“There is a first amendment right to create information like [Ex Parte’s],” Frisch said. “But for the lawyers to participate in it would be a pretty clear violation of the rule.”

Fair enough. At least it’s not a ban on judicial analytics like the one implemented in France. But should lawyer marketing rules hold back the distribution of analytics?

Let’s hypothesize that Ex Parte was really, really good at predicting the outcomes of litigation. It seems like that would make the whole process more quick and painless, relatively speaking.

Plenty of litigators say cases drag on because of clients’ emotional attachment to them. A 5% chance of winning should help most rational clients cut their losses and settle.

Turns out, another professional responsibility rule might take that argument into account. Model Rule 1.1 creates a duty of technological competence. That means lawyers may someday be required to tell clients about a tool like Ex Parte’s view of their case, said Anthony Davis, a member of Hinshaw & Culbertson’s Lawyers for the Profession practice.

“There is certainly no case to say that failure to use it is per se malpractice. We’re a long way from that,” Davis said. “But in terms of giving clients the best advice, part of the best advice is saying: ‘Why don’t we use this tool to inform the judgment we need to make?’”

Davis said sophisticated clients will quickly catch on to these new tools and likely require their lawyers to use AI tools that predict litigation outcomes. And if the AI suggests the client hires another lawyer, well, then it’s time to use your skills of persuasion.

“Lawyers can certainly say my qualifications are just as good,” Davis said. “And just because the AI didn’t pick that up doesn’t mean I can’t handle this case.”

Worth Your Time

On Litigation Finance: And Lenny Dykstra. The ex-MLB star is using litigation financier Legalist to pursue two lawsuits; one a breach of contract claim, the other a legal malpractice suit. Legalist is a specialist funder, backed by Peter Thiel, that uses algorithms to find potential cases worth backing.

On Jones Day: It was a busy week for the Cleveland-founded megafirm. Jones Day hired a leading antitrust lawyer from Vinson & Elkins in Houston and a private equity partner in Chicago from Kirkland & Ellis. The firm also got sued by two pro bono clients who say the firm’s work on their behalf ultimately led to their evictions.

On Lawyers’ Mental Health: Dentons partner Jana Cohen Barbe wrote an open letter arguing that law firms should reconsider their allegiance to the billable hour model to help protect lawyers’ mental health. Therapists who treat lawyers have also said the billable hour is often a source of distress.

That’s all I’ve got until next time! Reach me here to share your views on law firms, predictive analytics models, and whatever else is happening in the world of Big Law Business.