For Solo and Small Firm Lawyers, Big Data Presents Big Opportunities…and Big Challenges

Big data — that is, data sets large enough to allow analysts to glean trends with accuracy that’s not possible with small samples — is upon us, big time.  A 2011 McKinsey Report  described the magical qualities of big data, which can be used for purposes as diverse as improving the efficiency of the healthcare system to boosting collection of tax revenues to increasing operating margins for big business.

But it’s not just big business that’s excited about the prospect of big data – Internet experts and users agree, by a slight majority, that the rise of big data is a promising trend.  A Pew Report released earlier this week found that 53% of Internet experts and users polled are bullish on big data, viewing it as “a huge positive for society in nearly all respects.” But a third harbor reservations, fearing that big data can encroach on privacy or may be used improperly, thereby leading to inaccurate conclusions.

The legal profession, usually left in the dust when it comes to technological advancements, can be, and indeed already is being transformed by the rise of big data, according to Forbes.  Corporate law departments can analyze large amounts of data from invoices to determine which factors – (location? law firm size?) — most influence rates and negotiate better deals based on that data.  In fact, there’s already one neat app -  RateDriver that crunches data from thousands of law firm invoices and spits out an hourly billing rate based on practice area, firm location and and size and seniority of the attorney.  Professor Daniel Katz of Michigan State University describes how big data may be used in citation analysis.  There’s even a recently formed Ethical Analytics Program  sponsored by Hunton & Williams’ Center on Information Policy that will work to create voluntary guidelines for collection of big data.

From my perspective, big data holds promise to improve the legal profession and the quality of service that we deliver to clients.  Significantly,  big data would inject a strong dose of transparency into lawyer marketing and assist consumers in hiring lawyers.  How so?  Because big data can be used to show the likelihood of winning a case and the true cost.  So when a criminal defense attorney tells a client that he can make 15 counts of drug and handgun possession go away for a $1000 fee, the client can punch in a few facts and at least get a ballpark sense of not just how much the case would cost, but how much these types of cases cost where people actually win. At the same time, big data can help new lawyers evaluate a case by helping them figure out the odds of prevailing, which can help them set realistic prices for services.

Big data can also improve the quality of legal services that we lawyers deliver to clients.  Lawyers could calculate the generic odds of winning a particular issue on appeal – and then, identify those lawyers who consistently beat those odds and mimic their brief writing and argument style.  Right now, lawyers can easily figure out the big names in appellate practice, many of whom boast overwhelming won-loss records. But if they’re taking cases that are sure things to begin with, then their record isn’t as impressive as it appears.

But for all the promise of big data, as a small firm practitioner, it also scares me, big time.  For starters, big data comes with a big price at least for now.  The technology tools that are available to analyze big data may be cheaper than a room full of document reviewers, but they’re still priced out of most solo and small firm’s price ranges.  So in the short term, big data tools will increase the gap between big law and solos and our respective clients.

Second – and even more frightening, for lawyers, our clients — those whose confidences we are entrusted to protect — are the source of our big data bases. It’s one thing to harvest information from consumers who buy a scarf or a battery or ebook online (and even in those cases, there’s a potential for so much granularity as to encroach on one’s privacy, as was the case with Target and the pregnant teenager).  But much of the information that we lawyers collect from clients — or that our clients make available online (through Google searches and social media) can compromise their privacy and potentially damage their case. This article by Richard Cohen in the Guardian from June 2010 proposes a model where lawyers would give away legal services for free in exchange for capturing consumer data and reselling it at a profit.  Oh – and by the way – which client base would be providing this confidential data? Consumers who lack the financial means to otherwise hire a lawyer.

I’m all for advancing technology, but let’s not kid ourselves.  As with everything else in the legal profession, many of the technologic advancements have been driven by the demands of the big players – the corporations and the GCs and the large law firms (present company  excepted). Before we solo and small firm lawyers give a big cheer for big data, let’s make sure that we use it to address the biggest challenges in the legal profession: improving the quality of legal services delivered and expanding meaningful access to justice.


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