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What is Litigation Analysis?

C. Mitchell
C. Mitchell

Most of the time, attorneys and law firms have a choice when it comes to participating in a lawsuit. They examine a case, look at its merits and likelihood of success, and decide if it is worth their time and energy to represent the client. If they do take the case, they often have some leverage when it comes to choosing the court in which to file. Litigation analysis is a broad practice that strives to make these choices easier by examining statistics related to past successes, court histories, and average damage awards by court and judge. Litigation analysis is performed both for lawyers and for courts, and for each serves as a valuable benchmark of litigation data.

The majority of litigation analysis is performed for law firms. When a client comes in with a case, the firm will want to have some understanding of how hard the case will be to represent, as well as how likely the case is to succeed. Often times, lawyers can make these deductions based on their own past experiences and familiarity with a certain sector of law. The more complicated the case, however, the more the firm will want to be sure that investing the time, energy, and resources of its associates will yield a favorable outcome. Particularly if the firm is working on a contingency basis, meaning that they will only be paid a percentage of the client’s winnings, making sure the case is worth the cost is of paramount importance.

Woman with hand on her hip
Woman with hand on her hip

Sometimes, a law firm will assign a team of lawyers to engage in litigation analytics for a given set of facts. Other times, the firm will elect to hire an outside litigation analysis company. Professional litigation analysts make their living by contracting out their analytical services, and doing litigation consulting.

Litigation analysis performed at the case acceptance stage focuses on litigation risk analysis. It looks at similar cases in the same jurisdiction, and compiles data on damage awards, length of time of trial, and ultimate overhead costs, among other things. The report may also include data from negotiation analysis, particularly if the firm is considering settling the case.

Analysts may also come onto the scene after a case has been accepted in order to determine where to file it. Sometimes, but not always, plaintiffs have a choice of where they can file their complaint. Some courts are generally more sympathetic to certain kinds of cases than others, which is where the analysis comes in. Court-centered analysis compiles data based on all similar cases that have been filed in the available courts over the past few years and generates statistics on where the case at hand is most likely to do the best.

Courts themselves often engage in this sort of litigation analysis, both as a way to be sure that their outcomes are balanced as well as a way to detect judicial impartiality or bias. Analysis of courts is typically composed by evaluating all cases that have come through the courts during a set period of time. The results are sorted by judge, by fact-pattern, and by outcome. Most of the time, the results of these studies are public records, but depending on the circumstances of the study, they may not be.

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