Litigation – art or science?

Deadman: The computers are coming

Posted by Chris Deadman, director of operations at Litigation Futures Associate Invicta Capital Funding

If you live in my part of the world, the fireworks season starts on 1 October and concludes on 31 January. Since the New Year, my evenings have been punctuated by an unremitting barrage of cut-price pyrotechnics, only marginally more impressive than the brief night-time display given to motorists following smoking van drivers.

But lately the sound I’m hearing is not that of jumping jacks but the sound of a thousand backs being slapped. Yep, it’s award season in legal land. A chance for lawyers to tell each other how successful and client-focused they are without having to ask any, er, clients.

Now don’t be wrong, I like a gong as much as the next person. My cycling proficiency badge, Tufty The Squirrel road safety certificate and Big Chief Eye Spy letter of congratulation all have pride of place in my home. There is no doubt that a positive quote appearing in one of the leading directories does no harm to a lawyer’s career aspirations nor indeed to the firm that currently employs them.

It is also said that 60% of in-house counsel consult these directories before appointing a panel firm, although the cynic in me wonders whether the old truism ‘nobody ever got fired for appointing Clifford Chance’ applies here.

But what about a directory and a set of awards based on actual performance and measured by objective data? What a fabulous marketing tool that would be for firms brave enough to admit that they are in a results business. How good it would be to see firms boasting about how they win 95% of cases which come to court or settle 80% of claimant matters within 25% of the original damages sought.

But the really innovative work, at least from a funder’s perspective, is the role that artificial intelligence can play in predicting the outcome of litigation.

In a recent exercise, over 100 lawyers were pitched against an artificial intelligence programme called CaseCrunch. Both the lawyers and the computer were given the basic facts of hundreds of PPI mis-selling cases and asked to predict whether the Financial Ombudsman would allow a claim. In all, they submitted 775 predictions with CaseCrunch, the system achieving an accuracy rate of 86.6% compared with 66.3% for the lawyers.

The naysayers were quick to point out that the exercise took place in a highly controlled environment which bore no resemblance to real world complexity.

Real litigation, they argue, is art not science. Each case is different and with a constantly changing landscape, subject to the whims of people and the vagaries of chance. The lawyer is an alchemist, marshalling the disparate elements to turn base metal into legal gold. Such a complex and unique set of circumstances simply cannot be reduced to a mere set of numbers.

Unfortunately, if you make your living betting on the outcome of football matches, you will disagree. In common with litigation, football is played according to a set of well-defined rules. Matches take place in a variety of different locations around the globe and involve 22 variously hardworking, lazy, talented, useless, level-headed, arrogant, loyal, disloyal fit and injured individuals.

Faced with this degree of complexity, it ought to be nigh on impossible to predict the outcome with any degree of certainty. But the game has been beaten and beaten well by groups of individuals to rely on an algorithm to make their selections.

Tony Bloom, chairman of Brighton & Hove Albion and a successful racehorse owner, leads the way in high stakes, high profit sports gambling. His annual betting turnover on football is in the many hundreds of millions. As far as anyone can say for sure (Bloom and his coterie are a secretive bunch), he specialises in Asian Handicap markets where bookmakers accord teams a notional fraction of a goal and whole goal start or deficit to equalise their chances.

The algorithm produces its own assessment of probability expressed as odds. If the odds available are higher than the machine’s assessment, Bloom and his team strap on their betting boots. Less successful punters i.e. everyone else, claim that Tony Bloom won’t blow his nose unless the algorithm tells him to.

I daresay that someone like Tony Bloom couldn’t care less what others say about him – he is too busy amassing profit for his partners.

Sure, Bloom employs people to spend every waking hour glued to Norwegian Division 2 matches and staff whose job it is to scan the online world for news of injuries, discontent, sackings and transfers. But whilst this qualitative information is an important component of the process, it is the computer which has the final word.

Gone are the days when a single person’s opinion on the likely outcome mattered sufficiently to warrant a financial investment – what counts is the computer.

I concede that a sporting event lends itself more readily to this kind of analysis and that wisdom will always trump mere knowledge. I can, however, envisage a day when litigation funders rely less on retired lawyers and judges to mark the homework of applicant solicitors and more on the number crunching of an algorithm to determine whether a case is worthy of investment.


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