LexisNexis today announced its latest enhancement to its Lexis+ platform, Judicial Brief Analysis. Besides the bells and whistles, there are three noteworthy things.

LexisNexis today announced its latest enhancement to its Lexis+ platform, Judicial Brief Analysis. According to the LexisNexis Press Release, Judicial Brief Analysis is designed to quickly identify similarities and differences in opposing filings across multiple documents. It thus can help assess the strengths and weaknesses of the argument on both sides of a matter. It’s an AI-based research tool that can compare briefs and present the analysis in a smooth, impressive dashboard. This elegant dashboard will:

• Check and compare quotes,
• Show the results of Shepard’s analysis,
• Provide a map and an analysis of the importance of legal and factual terms,
• Identify relevant documents in the database,
• Provide a snapshot of what issues popped out of similar fillings that might be relevant,
• Provide secondary content recommendations, including Practical Guidance, treatises,
• Provide side-by-side comparisons, and
• Showcase similarities and differences across multiple documents in a unified view.

As expected of LexisNexis, the product demo was impressive: lots of bells and whistles. But besides the bells and whistles, three things about Judicial Brief Analysis came to mind when I talked to Liz Christman, LexisNexis Product Manager for Judicial Brief Analysis, and watched the impressive demo.

The idea was to create a platform that would mimic the work processes and map the workflow these researchers actually use to assist a judge in coming to a decision.

First, the method used to develop the tool and the approach. According to Christman, LexisNexis talked to hundreds of actual legal researchers, law clerks, and librarians. Most of these researchers work for judges and courts. The people who do the research for judges so they can render well based and supported decisions. The idea, says Christman, was to create a platform that would mimic the work processes and map the workflow these researchers actually use to assist a judge in coming to a decision. The platform is therefore designed to be neutral instead of adversarial. Said Christman, “we wanted to get a judicial perspective” for the platform.

This approach is a little different from the typical approach used in developing research tools. Most tools focus on assisting advocates in making a better argument. But the advantages of Judicial Brief Analysis are apparent. By adopting a neutral approach, the system can better find strengths and weaknesses in arguments. The system does things like compare briefs and checks the accuracy of quotes, for example. This feature will help the legal professional using Judicial Brief Analysis understand the exposure and better deal with the strengths and weaknesses of their position.

Decisions are often based on authorities that the court or researchers are aware of or have found in their research that the parties have not

And another feature. Christman noted that decisions often turn on authorities that neither party has cited. Instead, decisions are often based on authorities that the court or researchers are aware of or have found in their research that the parties have not. Christman says that Judicial Brief Analysis helps find these cases that might be relevant to either side’s arguments. Cases that a judge might want to use in an opinion. Legal professionals can then use or distinguish these cases.

Judicial Brief Analysis also finds legal and factual terms that might have significance to a decision-maker and reveals these to the product user. It can also show what issues and authorities are common to both sides, which can help narrow and focus the issues. The tool can also find briefs that have been filed in other cases on similar issues.

Being neutral-oriented gives the lawyer tools to make a better argument. The orientation helps find authorities in which a judge might be interested. Authorities which enable a better understanding of the strengths and weaknesses of the case. Which in turn helps manage client expectations and assess exposure. A different and noteworthy approach.

This “hidden law” contains precious information in formulating arguments

This brings me to the second important thing that got my attention: LexisNexis claims to have a vast database of trial court decisions. These decisions, which are not generally reported, can provide insights into what a particular judge who is handling and trying the case may be thinking. And how they analyze issues and cases, along with what authorities they typically rely on. This “hidden law,” as Christman describes it, contains precious information in formulating arguments. And how the trial judge rules on issues are of obvious and critical importance is how the case turns out.

It’s clear that lawyers with deep pockets and their clients who can afford tools like Judicial Brief Analysis have an advantage over those who don’t or, for cost reasons, can’t

But the third thing I thought about is perhaps the most significant. I couldn’t help thinking as I talked to Christman and watched the demo of the tremendous advantage a lawyer using Judicial Brief Analysis (assuming it does what LexisNexis says it does) has over one who does not have access. Which makes me wonder about the ethical issues this tool and other sophisticated technological tools raise or perhaps should raise.

Rule 1.1 of the Model Rules says:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

It doesn’t say anything about what tools a lawyer might be expected to use. Nor do the Comments offer any guidance, although Comment 8 does say a lawyer should keep abreast of the risks and benefits of relevant technology. And I guess it is a reasonable interpretation that Comment 8 suggests a lawyer knows about tech tools and what they can do.

But does this mean a lawyer must use available technological tools? Should this be some sort of an ethical requirement? And what about the costs of doing so? It’s clear that lawyers with deep pockets and their clients who can afford tools like Judicial Brief Analysis have an advantage over those who don’t or, for cost reasons, can’t. So far, this cost discrepancy has never morphed into an ethical issue.

But as the gap between have and have nots as technology advances, perhaps it should. Perhaps there should also be a better way for clients to know what tools a lawyer uses and whether that is in line with what others have.One way to do that is by having some minimum ethical requirement about what relevant technology a lawyer should be using, not just knowing about.