• David Slarskey

The New Math of Litigation

I've previously written about the advantages of hiring an independent litigator, and about my value-oriented approach in assessing litigation. This post is about "the new math" of litigation, i.e., how creative lawyers are doing things differently to streamline their practices.

Why call it the new math of litigation? Well, the other day on the subway, my third-grade daughter gave me a problem from her homework to solve alongside of her: three strings. String Q is twice as long as String P. String R is 3 times as long as String Q. In total, the strings are 495 centimeters long. How long is String P?

I immediately set up substitute equations, and ground through the arithmetic to reach the conclusion that P=55. As I started to explain my reasoning to her, though, she stopped me, drew a simple picture, and directed me to the answer much more intuitively. It was stunning, and challenged all of my assumptions about what it means to "get it right." Frankly, it made me a bit uncomfortable that she could get to the answer more quickly and efficiently than I could.

Like the new math, many technologies and techniques are taking lawyers out of their comfort zone, but enabling them to more efficiently and effectively investigate, plead, and prove their cases. Legal research has long since left the libraries in favor of electronic databases. But the rest of the practice is also going through overhaul, enabling lawyers to operate more leanly and efficiently. A single lawyer, or a small team, can accomplish what used to take a phalanx. After all, at the end of the day, trial attorneys are just storytellers--and the new tools are designed to help us to tell the best story we can, with reference to, and support from, the law. So, how are we doing it?

  • Technology Assisted Review. Generally speaking, the most expensive component of litigation is discovery. Technology-assisted review enables a few lawyers to move mountains of emails and documents. Getting through the discovery process is probably the single-largest obstacle to efficient pursuit of plaintiffs' claims.

  • Litigation Finance. Now becoming well-established in the United States, and with a longer track-record abroad, litigation finance enables thinly-capitalized plaintiffs and plaintiffs who would prefer to offload litigation costs (attorneys fees, expert witness costs, discovery costs, etc.) to enlist investors who buy litigation risk--advancing funds, secured only by the eventual recovery on a claim. Well-resourced plaintiffs are better positioned to take on well-resourced defendants. [I've recently launched a litigation finance business, Greybridge Capital, along with my law practice. So I have a particular interest in this emerging market.]

  • E-briefing and Evidence Presentation. Developing a technology strategy from the outset of a case--to compile, organize and present complicated evidence--makes communication more efficient. It is becoming more and more common for arbitrators and courts to to accept databases, or hyperlinked briefs, with evidentiary support at the click of a button, which enables a more effective presentation of the case.

  • Cloud-Computing. Working alongside clients and vendors with secure, virtual workspaces enables a collaborative approach on document preparation, evidence assembly, and organization.

  • Creative Team Management. By leveraging co-counsel, vendors, expert witnesses, and other support, we can create disaggregated teams that are more flexible and efficient to engage in "asymmetric warfare" against traditional law firms. This approach is particularly effective for plaintiffs who wish to move swiftly towards resolution, and against old-line law firms that are organized along more traditional, less nimble lines of hierarchy.

These and other forward-thinking techniques enable a firm like Slarskey LLC to take on large projects. In the last two years, we have taken two cases to trial (one arbitration hearing and one bench-trial), with hundreds of millions of dollars at stake. The new math of litigation adds up: P+Q+R = 495, whether you grind it out in the traditional manner--or think laterally and use a more creative approach.