Not just clients, courts are questioning research costs
Twitter has been abuzz after Law Times published an article yesterday covering two cases from the Ontario Superior Court of Justice addressing high legal research costs. While the echo chamber of legal tech has been going on for a while about clients refusing to pay for legal research, and firms are starting to see this turn into reality, we're now seeing this shift happening in courts.
In Cass v. 1410088, Justice Whitten states:
"All in all, whatever this “research” was would be well within the preparation for the motion. … If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced."
Some in Twitterverse have cheered this decision, while others have pointed out that there are complex motions for which tools cannot be used. It's important to separate the activities involved in legal research into: the time spent to narrow down the list of case law, and the time spent to draft the arguments based on case law. Clearly, indexed case law is now available in analytics tools such as Loom's Court Analytics, with the ability to drill down into this case law in significant depth, by types of trial, motions/applications, practice areas, facts, issues, decision makers, counsel and parties involved. Finding case law and comparing outcomes by playing out different scenarios in these tools makes it possible to evaluate different litigation strategies, so that lawyers can use their creative judgment to create novel arguments based on case law. Searching for case law based on parameters is often repetitive and is where savings can be had in the process of legal research by using AI driven analytics tools.
Cass v. 1410088 involved a summary judgment motion by both sides in an occupier's liability matter. A search on Court Analytics would take less than five minutes to give case law with outcomes for the scenario at hand, followed by counsel spending their resources drafting creative arguments.
Interestingly enough, the decision in Drummond v Cadillac Fairview also deals with an occupier's liability, where summary judgment was sought. Justice Perell states:
"Properly done, computer assisted legal research provides a more comprehensive and more accurate answer to a legal question in shorter time than the conventional research methodologies, which, however, also remain useful and valuable."
Perell J. makes the exact same point about reduction in legal research time. Perhaps it's time to make a distinction going forward in costs submissions on how much time is spent looking for case law and developing litigation strategy, and how much time is spent preparing for a motion by applying legal principles and drafting arguments based on case law. This will ensure that the time lawyers are spending on building novel arguments (something that will not be algorithmically replaceable any time in the near future) is recoverable, and isn't confused with the time spent to look for case law.
In the earlier decision rendered in Brown v Canada, Justice Belobaba makes that very distinction when he states:
"In addition to moving the senior legal research lawyer’s fees out of disbursements and into fees, I also deleted the computer charges for legal research (Lexis Nexis) – a total of $2134."
He also continues with:
"As I have noted in other costs awards, lawyers (who are already billing very high, monopoly-based, hourly rates for their legal knowledge) should not be charging for “legal research.” Customers should not have to pay anyone who charges by the hour, whether lawyers or plumbers, to learn on the job. Legal research is obviously essential, but it should not be a chargeable disbursement."
This is an argument that's been made by clients for a while, and now we're seeing judges echoing it as well.
A quick search through Ontario Superior Court of Justice case law gives at least two additional cases in the last eight years, where the judges discounted legal research fees. And now we're at a stage where we have analytics tools that can provide statistics on similar cases and allow us to compare outcomes for different litigation strategies: do I bring a summary judgment motion or do I go to trial? How would I fare in a class certification motion in different jurisdictions? How long will it take to get a decision on my trial, and should I settle instead because my client can't afford to wait?
With all the promise that analytics tools hold and the answers they can provide, the courts' response might just be the impetus needed for the adoption of data analytics tools, such as Loom's Court Analytics, in dispute resolution.