When a company enters litigation, it must select litigation counsel. The management of the company would usually call its peers and ask about past experiences, review counsels’ fields of technical expertise, evaluate their success rates, and then invite a handful of law firms to make a pitch. The invited attorneys would propose a case strategy and predict their probability of success. The management would then select a counsel based on the presentations given and their personal impressions.
Ex Parte is a start-up formed about two years ago that is trying to change appellate counsel selection for patent cases.[1] The company collects data for every appellate case since 2004 and combines it with a database of all practicing lawyers. It then uses a proprietary algorithm to identify a lawyer with the highest probability of success for a specific case. When Ex Parte analyzed the recent appeal by 10X Genomics, the company predicted that an average lawyer would have a nine percent probability of winning the case but hiring one particular litigator would increase the probability of success to 25 percent.
The attorney recommended to 10X Genomics by Ex Parte expressed concerns over the ethical implications of this analysis. For one, the lawyer no longer did patent appeals. Also, according to the American Bar Association’s model rules for professional responsibility, lawyers should not create an “unjustified expectation” of a future result based on their part performance.[2] But this is what Ex Parte may be doing – creating expectations of future performance based on past statistics.
In the U.S., the work of Ex Parte is protected by First Amendment rights and companies are not restricted in using its predictions to choose a litigation counsel. However, if a lawyer were to project his own probability of success based on his past record, that would be considered unethical. France has a law completely banning software companies from providing legal and judicial analytics.[3]
Additional concerns revolve over the ability of the software to account for