Lots of talk these days for the need for lawyers to be emphatic. To work on practicing empathy. To be more emphatic toward others. Usually, this is couched in terms of being able to better serve and relate to clients, and their needs and concerns, all of which is true enough. But there’s another more practical side to empathy for lawyers that’s also pretty valuable.

 

I stumbled upon this recently when a good friend said to me, “not sure how you were so successful as a lawyer, you’re such a nice guy.” (She was a little less direct than that, but I got the thrust). Ignoring for the moment that the idea that being a good/successful lawyer requires you to be an asshole, her comment did get me thinking about why I was so successful for so long while still being thought of as a reasonably nice person (well, at least by most).

 

After thinking about it, I decided that one reason I succeeded was that I was pretty adept at putting myself in other people’s shoes. Not just clients, but my adversaries and their clients as well. And this didn’t always mean pleasant, touchy-feely conclusions. It often meant seeing the more base and unpleasant motivations like greed, pride, underhandedness. The more I thought about my career and the careers of other successful lawyers, the more I have come to see that the ability to understand these motivations and to be able to manipulate them is a pretty critical skill for a lawyer.

 

This kind of empathy is called cognitive empathy. But it has a dark side which I believe was what my friend was getting at. Cognitive empathy ultimately leads you to always look for and expect the worst in people. It frankly turns you by and large into a scheming asshole which many lawyers are.  And If you never think anyone is acting out of some positive emotion, you miss an opportunity to leverage that emotion and motivation to get to a result which may be in your client’s best interest.

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But when I think about the really good lawyers-particularly trial lawyers- I know, I can see they also had a good dose of emotional empathy as well

 

But when I think about the really good lawyers-particularly trial lawyers- I know, I can see they also had a good dose of emotional empathy as well. Emotional empathy means you can actually feel what others are feeling and then manipulate those feelings to a persuasive advantage. This is a particularly useful skill to have if you are arguing to a jury, for example. Cognitive empathy always needs to be balanced by emotional understanding and vice versa.

 

But having either or both of these does not necessarily make you a good person apart from being a lawyer. It’s one thing to feel what others are feeling or thinking, it’s another thing to manipulate those feelings and thoughts to your advantage. I think this is why lawyers, in general, have a bad rep: most people know instinctively when their feelings and emotions are being used against them.

 

Which brings me I suppose to the last group of lawyers: the truly great ones. I think I have known one or maybe two.

 

Which brings me I suppose to the last group of lawyers: the truly great ones. I think I have known one or maybe two. These lawyers not only know how to use empathy, they are emphatic and never use that skill in a classic manipulative way. They do have the ability to actually feel and experience the emotions and as a result, better perceive the thoughts of others. As a result, they come across not as manipulative assholes but as genuine and honest people. Which is, of course precisely what they are.

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@anniespratt via Unsplash

 

 

 

 

 

 

Sometime ago, I wondered whether and to what extent plaintiffs’ lawyers, most of whom work on a contingency basis as opposed to by the hour, were adopting technology. After all, it would make sense that any technology that would reduce time spent on a task should be appealing to those who use a business model with which the less time you spend on a project, the more you make.

It has since occurred to me that litigation data analytics would be particularly appealing to contingency fee lawyers since it would enable them to better assess exposure and likely results and the time needed to get to an end resolution. I have written before about the power of these kinds of analytics.

I recently had a chance to talk with Owen Byrd, Chief Evangelist and General Counsel of the data analytics company Lex Machina, about this issue. Lex Machina provides data based insights and analysis on judges, lawyers, law firms, parties, and other critical information across 12 federal practice areas and the Delaware Court of Chancery. (Lex Machina is part of LexisNexis, the global provider of legal, regulatory and business information and analytics). Byrd confirmed that Lex Machina, at least, sees plaintiffs’ lawyers as a significant marketing opportunity and is making a big push to get into the contingency fee market.

Litigation analytics is a great equalizer

 

Byrd sees litigation analytics as a great equalizer both for plaintiffs’ lawyers facing well heeled defense firms but also among plaintiffs’ firms competing for business with one another. In particular, smaller firms—be they plaintiff or defendant— often don’t have the data that analytical platforms like Lex Machina and its parent LexisNexis offer and don’t have the personnel needed to do the type of hand analytics to match the capabilities of bigger firms. He says that there are a number of smaller firms and solos already using the Lex Machina analytical platforms.

 

Having access to and, more importantly, using analytics, will be table stakes for any firm competing for business.

Soon, Byrd says, having access to and, more importantly, using analytics, will be table stakes for any firm competing for business. (I agree by the way that this should be the case; it remains to be seen when this will come to pass). Byrd noted some present day differences between how smaller and bigger firms use litigation analytics: big firms use analytics more to pitch getting work; plaintiffs’ firms use analytics to filter the cases they will take.

I will confess that other than a few isolated but (fortunately) financially lucrative opportunities, I have never worked as a plaintiffs’ contingency lawyer. But I have gotten to know a whole lot of them and watched them work and analyze cases. Two big issues for them in evaluating cases are the time necessary to resolve a matter via trial or settlement and how much is realistically at stake. Both go to the heart of being successful as a plaintiffs’ lawyer.

Generally speaking, the really successfully plaintiffs are experienced trial lawyers who have become skilled at getting really high value results. Or they go the other way and know how to move lower value cases quickly and efficiently through the process to get results with the least amount of time invested. (That’s not to say that they don’t do a good job for their clients by the way). In any event, the really good ones have traditionally had the knack of intuitively placing themselves in the shoes of jurors for case valuation purposes-in essence they successfully practice a degree of empathy driven by business related concerns. Most of them get to this point through trial and error.

The less successful ones often misevaluate either the time needed to get to a result or the value of their cases or both. Often these are younger or less experienced lawyers who traditionally have had to learn as they go how to evaluate cases.

 

Litigation analytics can also get a better read—not on what a jury might do with a case—but on what juries have actually done, substituting intuition with real data

But here is value of data analytics. By accessing and analyzing data, less experienced lawyers can jump start their experience level and compete more effectively with more experienced brethren. They can get a better read on what a judge may with issues of law, whether a case might survive motion practice, and the chances it will get to a jury—all based on actual data. (Getting to the jury is the mother lode for plaintiffs lawyer: it increases the exposure and costs and, frankly, makes it more likely the case will settle sooner). They can also get a better read—not on what a jury might do with a case—but on what juries have actually done, substituting intuition with real data. With the power of analytics, the less experienced lawyers may even be encouraged to confidently take winnable cases that a more experienced lawyer who is not accessing analytics might not. End result: more people with winnable cases may have access to lawyers and have their cases heard in court.

I talked about this with a real plaintiffs’ lawyer, Hans Nilges. Nilges, who practices in Massillon, Ohio uses the Lex Machina analytic tools. He told me that so far he uses analytics to indeed assess a particular judge’s proclivities and to predict how they might deal with legal issues. He thus has a better handle on the chances a case coming in the door will get to a jury. Ultimately, Nilges sees analytics being used to predict legal and jury outcomes in a more evidence based way versus the hunch or intuitive method used by many lawyers today. He compared the use of analytics in law to the use in the medical profession: the medical profession long ago abandoned intuition for an evidence based model. This is one reason younger doctors who receive state of the art training in medical school quickly become skilled and even better practitioners than older physicians. Nilges also told me something interesting: one of his colleagues is using data analytics to predict when a judge may rule on a motion; he then uses that information to exert the maximum settlement pressure at the right time. Hadn’t thought of that but makes sense.

Since obviously not using analytical tools your adversary is using is such a disadvantage, you have to wonder why defense firms are using analytics differently

One last thing Nilges told me: similarly to Byrd, he, too, sees differences in how plaintiff and defense firms use litigation analytic. Nilges thinks defense firms use analytics more for business development purposes than to analyze what might actually happen in a case or map out strategy. Since obviously not using analytical tools your adversary is using is such a disadvantage, you have to wonder why defense firms are using analytics differently. Perhaps it’s because their livelihood is not so much directly at stake from a bad result; a miscalculation by a plaintiffs’ lawyer has much more immediate and direct, bottom line financial repercussions.

I also talked to Ari Treuhaft, the Head of Product of the national plaintiffs’ law firm, Morgan & Morgan. Treuhaft confirmed that Morgan & Morgan also makes extensive use of analytical tools based on both external data but also on the significant internal Morgan & Morgan data. Morgan & Morgan uses analytics to look at predicted outcomes but also to determine process mapping, how long it will take to resolve cases and how to select lawyers for cases and staffing.

So, yes, the better plaintiffs’ firms seem to be using data analytics just as I thought they would be and should be. And, as time goes on, its inevitable that these firms will gain a significant litigation advantage over defense firms that don’t. The big issue is whether and when corporate clients will figure this out and demand better use of analytical tools by their lawyers.

 

Photo Attribution

@imthebear via Unsplash

@samuelZeller via Unsplash

Dennis Kennedy and Tom Mighell are two of the most respected legal tech commentators around. They are ten times smarter and 100 times more well known than I.  (Or maybe its 100 times smarter and 10 times more well known. In any event, you get my point). So disagreeing with them may be the dumbest thing I have another done. But here goes. Continue Reading You Disagree With Kennedy & Mighell? Are You Out of Your Mind?

Many of your know that I’m a big fan of Nicole Abboud’s podcast, GenY Lawyer. It’s supposedly designed for millennials but you wouldn’t know it by me. It’s really about life and coping with day to day problems, big and small, we all face in the legal profession (no matter what your role) and life itself. Continue Reading As Soon As I Publish This, I’m Going To Stop Worrying About It

Yesterday, ALM released its financial summary for the AmLaw 200.  (The AmLaw 200 consists of firms whose gross revenue is lower than that of the top 100 firms but above that of firms 200 and down. I previously discussed ALM’s findings concerning the financial picture of the AmLaw 100).  ALM summarized the results yesterday in a webinar held by Gina Passarella, Editor in Chief of the American Lawyer, Ben Seal, an ALM Managing Editor, and Nick Bruch, ALM analyst.

The results: like Sergio Leone’s old spaghetti western film, the financial status of the AmLaw 200 can best be described as some good, some bad and some really ugly. Continue Reading The AmLaw 200: The Good, The Bad and The Ugly

Some of you may have noticed the blog has a new logo on the About page, and the description of the blog has changed a bit.

Here’s the back story to the changes. As most of you know, I practiced law for some 30+ years before leaving to become a full-time blogger. At first, I wasn’t really sure where I or the blog was going, but I was reasonably sure I would figure it out. So if you look at some of the articles, you will see subjects meandering from tech, to change management, to innovation and even substantive legal discussions along the way. Continue Reading TechLaw Crossroads: No Bullshit

I’m in Las Vegas this week for the annual CLOC conference at the Bellagio Hotel. CLOC (which stands for the Corporate Legal Operations Consortium) is a network of businesses devoted to advancing in house legal operations. As its name implies, it’s membership and benefits have traditional been open only to corporations. Not law firms. And that may be about to change. Maybe. Well maybe sort of.

CLOC and its conference have grown substantially over the past 4 years; the conference is rapidly becoming a “must go” not only for legal ops people but for anyone in legal tech and innovation space. But with growth and notoriety comes new and thorny issues that CLOC is now grappling with, issues that are bubbling up just as CLOC has named a new President, Mary O’Carroll. Continue Reading CLOC’s 2019 Growing Pains

 

TechLaw Crossroads is happy to announce a new partnership with ediscovery service provider PageOne to sponsor a series of Roundtables to discuss burning issues in the ediscovery space. The idea is to bring together Lit Tech support personal, litigators (yes lawyers are invited ) and paralegals, among others, to talk about what’s working and to network in a relaxed setting.
Lunch will be provided and we plan to offer an agenda in advance. We also welcome participants to submit topics to us as they arise.
We all have good ideas and can learn from one another in a rapidly evolving space. We ask only that you come with the mindset that (a) there are no bad ideas and (b) all egos will be left at the door. We also ask that you come prepare to offer ideas and thoughts and if you like, even some humor. PageOne has been doing these for some time and by combining efforts within TechLaw Crossroads, we hope to broaden the appeal and converasation.
The next roundtable will be at the offices of Taft Stettinius & Hollister in Indianapolis on May 29th. We plan to discuss the following topics:
*Emojis.   How is your firm handling them in discovery?   Tech to identify them correctly?
*Cell phone discovery / Social Media Capturing.  (FRE 902(13) and FRE 902 (14))?
*Best CyberSecurity Practices / ways your firm is protecting itself from bad actors?
*Selling A.I., Analytics, Predictive Coding to your clients…best practices and what’s working?
*Moving client data to cloud—Infrastructure / SAAS…what’s everyone doing?
Of course, Chatham House Rules will apply. Interested? Want an invitation? Contact me at sembry@techlawcrossroads.com or Rich Smith of PageOne at rsmith@pageonelegal.com
We look forward to your thoughts and ideas!

Not long ago, I climbed on my soapbox about the lack of diversity among speakers at a recent technology conference I attended. Here’s the picture that prompted that post.

 

At the risk of revisiting this, I have had three recent experiences that brought to mind related issues of women, how men treat and view them and more particularly what the legal profession is or should be doing about our embarrassing women and diversity problem. Continue Reading A ManPic Worth a Thousand Words: Women and Law

Yesterday, the AmLaw 100 Annual Financial Survey came out, and it offers an interesting picture of where the bigs are and perhaps where the industry is going.

I also listened to an ALM webinar yesterday in which there was a fascinating discussion about the findings among Nick Bruch, am ALM analyst, Dan Packel, an ALM reporter and Gina Passarella, Editor-in-Chief of The American Lawyer. One of the big topics of discussion by the panel: what happens if and when there is a recession.

Here are some takeaways from the data and the discussion and then some of my predictions. Continue Reading The AmLaw 100 Annual Financials: A Glass Half Full or Half Empty?