Moneyball: Are Lawyers Required to Scout Judges?

As many of you know, I coached high school basketball for a long, long time.  Contrary to popular belief, high school coaches do far more than cut your kid, bench your kid, or play your kid, but without letting him take every shot. One of the things that coaches do is scout opponents.

Scouting entails going to a future opponent’s game and studying the opponent.  What defense does the team play?  If the coach calls timeout, what play is the team likely to run next? Which players do we force to dribble to the left – because they can’t? Which players are such poor shooters that we don’t need to worry about guarding them? Stuff like that.

Coaches also scout referees.  Which refs call hand-checking?  Which refs don’t care about physical play in the lane?  Which refs call moving screens?  Stuff like that.

Knowing “stuff like that” is considered MINIMAL competence in the coaching world.

And now it may have (officially) entered the attorney ethics world.

Again, lawyers must provide clients with competent and diligent representation. Many of you have informally scouted judges.  You know which judges are inclined to stick to the letter of the law.  You know which judges are inclinded to respond to “fairness” arguments.  You know which judges are likely to grant motions to suppress, and, you know which judges aren’t.  Stuff like that.

But even if you don’t know stuff like that, I’m not aware of anything that says you’re less than diligent or competent.  That might be changing.

Earlier this week, Robert Ambrogi posted this entry to his fabulous Law Sites blog.  Here’s a quick summary: Ravel Law launched a service that allows lawyers to scout judges. It’s called “Court Analytics.”  Describing the service,  Ambrogi notes:

  • “you can see, for example, a court’s most-cited opinions and judges, as well as the opinions and courts it most frequently cites. It also lets you identify how courts and judges have ruled in the past on particular issues or motion types.”

Ambrogi added:

  • “How would an attorney use these analytics? I put that question last week to Daniel Lewis, the co-founder and chief executive officer of Ravel Law. He described two primary use cases:
    • Forum comparison. If an attorney is forum shopping and wants to compare how different jurisdictions have dealt with a particular issue or motion.
    • Argument crafting. If an attorney is arguing a matter to a court, the argument can be made more persuasive by knowing which authorities that court or judge finds most persuasive.

    ‘Attorneys will be able to use it to see how a court has dealt with cases on a particular topic or motion, what they key cases are they should know about, and the particular rules, standards and language that are most important in that venue,’ Lewis said.”

Frankly, I’m surprised it has taken so long for analytics to arrive in the legal profession.  As any baseball or movie fan knows, using analytics is now considered minimal competence in baseball. Show me an industry, I’ll show you an industry in which analyzing data is considered minimal competence.

Except, until now, the law.

It makes me wonder: as the data that drives Ravel’s “Court Analytics” app becomes more freely available, will the duty of competence include a duty to make use of that data? It will, right?  After all, what will your response be when asked “why didn’t you?”

By the way, for those of you thinking “there’s no way that this impacts Vermont,” think again.  As Ambrogi notes:

  • “Thanks to Ravel’s digitization partnership with Harvard Law School, its case law collection includes all federal and state courts.”

 

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2 thoughts on “Moneyball: Are Lawyers Required to Scout Judges?

  1. Finally, something interesting….athletic strategy….not those confusing rules. Next maybe you can write something about sports on ice.

    How do we get access to the decision data base on Vermont judges?

    Is forum shopping bad ethics? Dicta in cases discourages it.

    Like

  2. Maybe you could write some time about unpublished cases. They are a body of secret law and are plainly wrong. They allow judges to avoid accountability for what they have said. Stare Decisis insists that a court must be told all the time what it has decided.

    Like

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