Strategic Advantages Throught Litigation Support

Wednesday, December 1, 2004 - 00:00

David V. Dilenschneider

You don't need to convince me about the power of thorough investigation. When I was a young litigator, I was asked to draft a motion to dismiss in a civil RICO case that had been filed against one of our big corporate clients. While doing my research for the motion, I uncovered numerous opinions, both reported and unpublished, on the issues involved that had been authored by the judge assigned to our case. I proceeded to quote those opinions liberally throughout my motion. The judge not only granted the motion I had written but also basically copied the language I had used, word for word, and pasted it into his opinion.1 Corporate counsel, not to mention the partner with whom I was working, was delighted by the result.

With ever fewer cases actually going to trial, the independent gathering of information about all the people, places and things involved in a case has become a critical aspect of litigation. Whether you call it litigation support, investigation, intelligence or early case assessment, such information enables corporate counsel to make more-informed strategic decisions on how to proceed with a case - that is, settle early, engage in motion practice, pursue lengthy discovery, take the case all the way to trial, and more.

As demonstrated above, researching a judge can provide interesting and strategically advantageous information - and there are many ways such information can be utilized. For instance, there is a federal district court judge who has not only routinely violated his court's local rules which bar citation to unpublished opinions but also violated other courts' similar rules when he sits on those cases (which he has done several times). Imagine having that judge assigned to your case and your outside counsel knowing of his tendency to cite unpublished opinions regardless of the governing rule - and opposing counsel being unaware of this fact. Such information could truly offer a strategic advantage to the litigator who is drafting a dispositive motion.

Or consider researching a judge through news and public records information in an effort to uncover grounds for recusal. What if you are general counsel for a tobacco company and one of your cases gets assigned to the federal district court judge who serves on the board of directors for the American Lung Association? And don't forget judge's spouses. In late 2003, a federal district court judge had to recuse himself from a case because his wife worked for a law firm that represented the defendant in unrelated cases.

So having such intelligence about a judge can be quite beneficial at times. Similarly, having such information about opposing counsel, experts, and even lay witnesses and jurors can offer strategic advantages. There's a big difference, however, between having such information and actually going about getting it. In fact, such research can sometimes be very time consuming for inexperienced litigators to do, and therefore costly - ultimately to corporate counsel. At least it used to be. But now several products have been developed that make the intelligence-gathering process far easier and cost-effective.

A great example of such a product is docket-information aggregators. For example, LexisNexis CourtLink Strategic Profiles, first introduced in July of 2003 and produced from docket information from the Federal District Courts or some state courts (i.e. New York State Supreme Court and Cook County, Illinois Circuit Court), enable litigators to gain insights into not only judges but also attorneys and law firms, and even litigants (company or individual). To put it simply, Strategic Profiles qualify cases filed during a time period selected by the researcher and, based on that time period, aggregate docket information relevant to the selected person or entity in a number of different dimensions. Information included in a Strategic Profile varies, depending on the type of individual/entity searched. For instance, a Judicial Strategic Profile includes counts of the cases handled by the judge by "nature of suit," yearly caseload numbers, and a compilation of each attorney and firm who has had a case before that judge over the selected time frame. In addition, all the cases that were used to form the report are displayed, and any document from any of those cases can either be viewed online or ordered. An Attorney Strategic Profile includes cases handled by that attorney broken down by "nature of suit," the number of cases filed each year, the judges before whom that attorney has appeared in those cases and even a listing of all the other attorneys that attorney has worked with or against in those cases.

From the aggregate view offered by a Strategic Profile, a litigator may draw compelling insight. For example, I recently conducted a presentation at a law firm and, during the course of the presentation, pulled up a Strategic Profile on an attorney who had recently filed a copyright infringement lawsuit against one of the firm's clients. The Strategic Profile revealed that opposing counsel had filed almost a dozen other copyright infringement lawsuits on behalf of the same client against other defendants over the past four years. The attorneys to whom I presented this information immediately grasped its significance and the need to review the dockets for each of those other copyright infringement cases to assess how opposing counsel had handled each (i.e. the motions filed, the tactics utilized, etc.), so as to not only strategize on how best to defend their client but also advise general counsel as to what to expect during the course of litigation.

But Strategic Profiles are just one example of the many litigation support tools that put in-depth information at litigators' fingertips to the ultimate benefit of their clients. Another such tool is one that searches multiple databases simultaneously, thereby adding efficiency and effectiveness to litigators' investigative efforts. For instance, the recently-released LexisNexis Analyzer enables a litigator to run a single, targeted search through multiple databases to generate a report about a judge, arbitrator, attorney, expert or company. Best of all, all the researcher has to do is enter a name, and Analyzer does the rest. For example, a search on an expert in Analyzer searches through several relevant databases simultaneously, including case opinions, verdict reports, expert directories, agency decisions, general and legal news articles and more. And in conducting that search, Analyzer eliminates most potentially "false" hits by retrieving only those verdict reports that reference "John Doe," expert witness, for example, and ignoring those reports referencing "John Doe," a judge.

Gathering all this information in a single search through a product like Analyzer makes the litigator far more efficient and effective in his/her work. First, by saving the litigator time, as well as the cost, of searching through multiple databases, he/she is far more efficient, thereby reducing costs to corporate counsel. Second, LexisNexis Analyzer searches through databases that some researchers might not otherwise know about or not consider as being important. With respect to experts, this is particularly important. It seems that every couple weeks a new story comes out about how an expert has been caught fudging his/her credentials on the stand, in a deposition or on a resume.2 Yet it is amazing how many researchers still fail to search for biographical information about experts through resources online, such as expert directories, professional licensing information, professional directories and the like. Tools like Analyzer incorporate such databases and thereby help a researcher avoid the risk of missing a critical piece of information.

But perhaps the most powerful new tools for gathering information are the "smart" ones - the ones that go beyond just mere aggregation. You see, I'm David Dilenschneider. But I'm also David Dilenschneiver, David Hneider, David Morezdilenschneid and David Vdilenschneid - at least according to various public records from across the country. I know this because LexisNexis SmartLinxsm told me so. SmartLinx is a product that searches through over 1,400 public records databases (covering 1.6 billion documents) available from LexisNexis in a single search - everything from real property records to bankruptcy filings to licensing information. But, better yet, SmartLinx searches with intelligence. That is, it utilizes relational algorithms to recognize that that public record for "David Hneider" is actually a public record for me. Having a product that makes such a connection is incredibly important because a regular public records search on my name would never reveal the name variants that exist. For someone investigating me, it may not be that big of an issue because the variants are merely "typos" made by mortgage companies, in tax assessor records, and the like. But for some individuals (e.g. parties, witnesses and jurors), knowing what aliases or alternative (e.g. maiden) names exist may be quite useful if not downright critical.

And SmartLinx reveals far more. A litigator can uncover phone numbers associated with a particular individual, current and previous addresses, gender, birthdates, filings (i.e. bankruptcy, judgment, and lien), licensing information, voter registration records, associated entities (e.g. mortgage companies and banks), associated individuals (e.g. spouse) and more.

Of course, these litigation support tools can be used outside of litigation. CourtLink Strategic Profiles and LexisNexis Analyzer could be used by corporate counsel to analyze potential or current outside counsel. SmartLinx can be utilized not only to obtain information about individuals, but also to learn more about companies and real estate - for purposes of transactional deals. The opportunities for utilization are vast.

When it comes to litigation, everyone is looking for a meaningful edge - a strategic advantage, if you will. Powerful new products and services support litigation efforts by enabling the efficient gathering of intelligence about all the various "players" involved in litigation: the litigants, experts, witnesses, attorneys, law firms and judges. These products and services utilize information from prior litigations and search for relevant information across a multitude of related sources to provide a new approach to litigation research; research that goes well beyond case law.

For more information on these products, including introductory offers and pricing, or to talk to an account representative please call (800) 227-4908. Mention code: 900045.

1 Whether this would happen today is questionable. See, e.g., Bright v. Westmoreland County, 380 F.3d 729 (3rd Cir. 2004) (reversing a trial judge's opinion that copied almost word for word a "proposed opinion" submitted by one of the attorneys).
2 For example, see Garmisa, Steven, "Expert's Credentials Questioned Too Late To Trigger New Trial,"Chicago Daily Law Bulletin, Oct. 6, 2004 (defendant's expert lied about working as an engineer for Daimler Chrysler, about being a licensed engineer, about being a member of the American Society of Metallurgical Engineers, and about being a certified fire investigator).

David V. Dilenschneider, Manager of Market Planning for LexisNexis, received his B.A. (cum laude) from the University of Notre Dame and his J.D. from The Ohio State University College of Law. Prior to joining LexisNexis, David was a litigator in Columbus, Ohio and practiced primarily in the areas of ERISA litigation, commercial and business litigation, asbestos litigation and criminal law. In Market Planning, David works to develop products that enable litigators to practice more effectively and more efficiently. He also routinely serves as a speaker at prominent legal-education conferences.