Data driven litigation

A Point of View

David H. Fauss, M.S.M.

On September 3, 2015

Category: Getting the Job Done, Litigation Tips, Trial Consulting

More and more, there are articles about “big data” and how businesses are “data driven.”  I find some of the applications for data analysis interesting and innovative.  However, what is striking to me is that many of these articles are written as if this is new news.  Maybe some of it is, but to me, it mostly represents new applications for old techniques.  As someone who has studied marketing and social science research, I know that business has been “data driven” for a long time.  Products and services of all types are tested and researched before being introduced into the market.  Most of us are familiar with taste tests, but market research goes much further than this.  I’ve noticed unmarked and unfamiliar (new) cars being driven on Alligator Alley in caravan style – obviously these are being tested for mileage and other purposes.  The point of this is that business has been driven by data for a long time.  Market research creates data based on which decisions are made.  So, data driven decisions are important in business, perhaps more than ever.  That is why I find these articles a bit off putting in that this appears to be a new thing; it is not.  To the degree things are new, it is that there are more data than ever through which to sort.  And, this brings me to a point that I have made over the past 20+ years in working with trial attorneys.  Just like a new product (car, soft drink, etc.) is tested before market, so should be the attorney’s product – a lawsuit.  Litigation is risky and expensive, but data can be obtained through research and analyzed to enable the litigants to make informed decisions.  As trial consultants, we collect qualitative and quantitative data on litigation decision makers, including jurors, mediators, arbitrators, or judges.  But, in any event, what we are doing is obtaining data and using it to create “data driven litigation.”  While it is difficult to quantify, knowing what the data say about the likely case outcome should make the litigation less risky, less expensive, and lead to better resolutions.

Another View

Melissa Pigott, Ph.D.

On September 3, 2015

Category: Getting the Job Done, Litigation Tips, Trial Consulting

In my profession of social psychology, it is impossible not to be data driven! Data are the primary source of information I use to perform my job on behalf of my clients. I share David’s bemused attitude regarding recent media accounts of “big data” and companies becoming “data driven,” along with his recognition that these concepts are anything but new. (As an aside, I also shudder anytime I read or hear people referring to data as a singular noun, instead of the proper sentence construction in which “data” is the plural of the singular “datum.” Evidently, as the general public began to talk about data, the rules of grammar, not to mention mathematics, have become more relaxed to most people, not including me, of course!) In my career as a litigation research consultant, I collect data from research participants, I analyze these data via statistical and other methods, and I report the findings of my data analyses to my clients. There is nothing in my job that strays from data. Some potential or new clients ask me for my “gut feeling” about their case, to which I always reply I have no “gut” or other feelings about their case; instead, what I must do is collect the data from the research participants (usually mock jurors, however, other research participants are arbitrators, mediators, and judges), analyze them, then, based on my analyses, devise recommendations about their case that are meaningful, as opposed to based on my feelings. I have used “big data” for my entire career, even though today’s computers are far more sophisticated in capturing data than their predecessors. All of this is to say that the latest fad among the media and general public is, quite often, based on something we social psychologists have been researching for decades. What is new is sometimes something old that has merely been repackaged, recycled, re-named, and re-used.

Comments are closed.

Powered by WordPress. Designed by WooThemes