Water, water, everywhere,
Nor any drop to drink.
Rime of the Ancient Mariner
Data is a lot like the above line about the ocean from the 1834 Rime of the Ancient Mariner. There is data everywhere that would help us to make better decisions if only we could get to it. Some of this data is public and accessible. But much of the data from which lawyers could most benefit is locked away in private silos in aw firms and businesses’ files. The inability to access this data creates a real gap in attorney understanding and knowledge. Bridging this gap would provide tremendous insights, increase efficiencies, reduce cost and even reduce the amount of work some lawyers do. And it looks like that’s where we are headed.
On December 9, LexisNexis, a global provider of legal, regulatory, and business information and analytics, announced the launch of its Survey of Commercial Lease Terms. The Survey was developed as part of a set of products offered by LexisNexis’ appropriately named Practical Guidance group. The Survey is based on private data about commercial lease obtained from law firms and businesses. According to the press release, the Survey will provide up-to-date intelligence about the commercial leasing market. And it will give real estate attorneys a clear view of market standards, standard lease terms and trends to aid them in lease negotiations.
Here’s how it works. According to Daniel Lewis, Vice President, Practical Guidance, it’s basically a “give and get” model. A lawyer provides information about leases he or she has negotiated. In return, gets free access to the Survey, which, according to Lesley, will be likely be done twice a year. LexisNexis subscribers also get updates as the Survey is continually refreshed with recently negotiated commercial leases from private sources.
Lesley Vars, Product Manager, Practical Guidance, told me LexisNexis analyzed the deal points that might be helpful for lawyers to know about in negotiating commercial deal points. This resulted in the selection of some 40 individual points for the Survey. The Survey details the market standards for these deal points. It also provides insights into the COVID-19 pandemic’s impact on commercial lease negotiations.
“Getting the best terms in a commercial lease negotiation requires an accurate view of current market conditions, but lawyers typically see only a slice of the market based on their own deals or those of their organization,” said Eric Bourget, Senior Director of Practical Guidance. “With the Survey, lawyers now have access to an always up-to-date source of market standards for legal terms.”
The Survey covers office, retail, and industrial leases of properties of all sizes from all regions of the United States. With multiple and intuitive filters, charts, and summaries of deal points and developments, the Survey makes analyzing trends and gauging current market conditions easy.
Say you’re negotiating a lease for a commercial tenant. The landlord is demanding the inclusion of certain clauses to which your client objects. By consulting the Survey, you could determine, for example, whether other landlords in the jurisdiction have been historically been able to include the objectionable clauses. This knowledge then improves your negotiating position.
Or say you’re an out of town lawyer trying to negotiate a lease. The Survey can tell what clauses are or are not typically included in a lease, saving you time and your client money. It could also keep a deal from falling apart. “Data-driven practical guidance empowers lawyers to work quickly, confidently, and effectively. ,” said Daniel Lewis, Vice President of Practical Guidance.
Part of the hesitancy in sharing information like this is confidentiality. Lewis hopes that LexisNexis, as a “trusted third party”, can convince law firms and in-house legal departments to partner with LexisNexis to provide an even more robust data set going forward. The LexisNexis team assures that the confidentiality of the parties to the lease, addresses, and submitting parties are protected. Lewis says this the first time the Practical Guidance team has gone after privately held data for analytical purposes.
I’m not a real estate lawyer. I’m a litigator. I’ve long championed the use of data analytics in litigation analysis. While there’s lots of information in court records, the missing piece to evaluate exposure is data about settlements. Let’s face it. Most cases are settled. And many are settled confidentially (although more courts are pushing back).
If there were a way to know what similar cases settled for, it would be of tremendous value in assessing exposure, cutting costs, and managing expectations. Most disputes end up in expensive litigation because one side has mis-evaluted the exposure. Data about similar case settlements would help prevent this lack of expectation fit and result in decreased litigation costs.
Bob Ambrogi and I have a running debate over which one of us first said that not using litigation data analytics might soon be malpractice. Regardless of who is right, the truth is that litigation data is so rich and the insights so keen. It would be folly not to use it. The missing to piece to litigation analytics is settlement numbers and value.
I asked the Practical Application team about this. Lewis told me the team “sees plenty of opportunities for this model, including civil litigation.”
Where there is a will, there is a William.
Yes, there are confidentiality concerns and issues. But the same is true in the lease context, and it looks like LexisNexis has found a way to deal with this issue. I have a friend who is fond of saying where there is a will, there is a William. Given the value of the information and the increased efficiencies such data could bring to litigation, I’m sure someone will find the Williams. Maybe LexisNexis.
What’s the So What?
On the contract front, other tools like contract automation programs offered by Blackboiler and Avvoka about which I previously posted, already reduce the time lawyers need to spend on matters. Layer in the insights obtained from analyzing private data allows you to eliminate negogiation over things that can’t happen and speeds up the process. It even allows business people to do more and more without bringing lawyers in unless there is a real legal issue that can’t be resolved.
Collecting and the analysis of private data along with that publicly available will provides a rich source of information across any number of areas in which lawyers practice. As mining of private data moves to other areas, similar efficiencies to those we see with contract, lease and someday litigation will be obtained. Good news for business, maybe not so good news for lawyers.
Perhaps the Benjamin Moore idea of eliminating it’s in house legal staff isn’t so crazy after all.