These days, the legal industry is obsessed with data . In my view, that’s a positive trend. Access to large amounts of information outside of any single lawyer’s experience yields trends that enable us to better assess our clients’ likelihood of success. Data also gives clients a more objective view of what they can expect to recover than relying on an outlier verdict reported in a newspaper, or a settlement that a friend of a friend purportedly received in the very same case.
Still, as I learned from my own recent experience with data-driven decision making, though data improves the accuracy of predictions, it doesn’t remove all risk. For that reason, in spite of data showing favorable odds, it doesn’t make it any easier for lawyers to sleep at night when our clients’ cases are on the line. Nor can we rely on data to anticipate what another law firm may do, because firms don’t always act rationally (or because other forces besides reason inform behavior). Here’s how one data-driven decision worked out for me.
By way of background, readers may recall my post, Trial by iPad , describing how ten days before trial, I mastered use of the iPad and went on to win three six-figure verdicts against an AmLaw 100 firm. After the verdict, my clients – three sets of landowners who had been trying to secure just compensation for properties that the gas company had expropriated for a pipeline – believed that their long nightmare was over after the jury awarded each of them between three and ten times the initial offer. Sure, we expected the typical post-trial motions as a matter of course, but an appeal wasn’t something on our radar.
And why should it have been based on the data? According to statistics for the federal judiciary , in 2015, the Fourth Circuit reversed only 45 of 874 private, civil appeals – just 8.5 percent, with similar percentages for prior years. My additional research showed that reversals of jury verdicts were even less frequent, accounting for roughly 8-10 of the 45 cases reversed (I couldn’t readily find this data so I pulled a year’s worth of 4th Circuit cases on Google Scholar and counted the jury awards vacated or reversed in full). Given that the award wasn’t enormous by a big company’s standard and only one small piece of our award was vulnerable (and because of use of a special verdict form, could have been segregated and challenged separately), the only rational basis (if you can call it that) for filing a full blown appeal was to bully my clients into settling for some percentage of the full value of a hard fought verdict.
Though the odds were in our favor, like any responsible lawyer, I initially attempted a reasonable settlement to put an end to the case, get the clients paid and save the cost of defending an appeal. Ultimately, however, the amount that the company offered would have represented a substantial reduction in the verdict, even when factoring in the cost of appeal. Moreover, the settlement would have forced my clients to waive recovery of interest and several ancillary claims not encompassed in the verdict
So when my clients asked how to proceed, I gave them my opinion: that based on the numbers, the verdicts would most likely stand, and while the irregular component of one of the verdicts might be reversed, the special verdict sheet would immunize the other and more significant portion of the award from reversal. I shared the statistics as informed by my quarter of century of knowledge of appellate practice and they all decided to call the company’s bluff and fight the appeal.
I wish that I could say that I had as much confidence in the data as my clients had in my advice. But the 8.5 percent odds didn’t quell my nightmares about a ruling vacating the verdict and sending us back to court to start the case all over again. My fears weren’t abated by other lawyers, several who insisted that the case was destined for reversal, while others wondered why not just settle for a sure thing – even though we’d won the case.
I panicked even more when after briefing was complete, the court set the case for oral argument. As the data shows, the Fourth Circuit grants oral argument in just 9.3 percent of cases , which increases the rate of reversal to one in three – or around 30 percent. Aaack! Still, I attempted to calm myself after oral argument where the court focused primarily on the “weak-link” issue. And today, for the first time in seven months, I could heave a sigh of relief the Fourth Circuit ruled exactly as I had predicted.
As my experience bears out, data can inform more accurate decisions — but unless lawyers are willing to play the odds -even when favorable, the data doesn’t matter. After all, despite the odds against an appellate court overturning a jury verdict, it’s become common practice for litigants who win verdicts at trial to settle for 60-80 percent on the dollar to avoid an 8 percent loss on appeal. Given that lawyers are notoriously risk-averse, it will be interesting to see whether big data makes a big difference in decision-making when someone else’s six-figure verdicts are on the line.