“Yet let’s be content, and the times lament, you see the world turn’d upside down.”
— The World Turned Upside Down reportedly played upon the surrender of Lord Cornwallis at Yorktown.
The world of personal injury litigation may indeed be turning upside down as plaintiffs’ lawyers can now match and even exceed the capabilities of many defense law firms. Firms, who, like the British soldiers in the Revolutionary War, seemingly had all the advantages. And we all know how that turned out.
The Inherent Defense Advantages
Historically, law firms that represented defendants had some significant intrinsic advantages in personal injury cases. Defendants are usually insured, and the carriers pay most of their legal fees. The time spent on the matters by the defense firms were billed by the hour and fees were paid more or less monthly. This provided defense firms with a steady stream of revenue throughout a matter.
In addition, defense firms were typically larger than plaintiffs’ firms and had more resources. Often plaintiffs’ lawyers practiced in smaller firms or on their own and handled their caseloads while trying to run the firm business at the same time. They have fewer resources and less time to devote to their practices.
Plaintiffs’ lawyers were and are paid on a contingency basis which meant they got very little revenue until a matter was resolved. And it was in the defense firm’s best interest for matters to drag out: they got paid more and could use this fact to leverage the plaintiffs’ firms into lower settlements since they often needed the money.
It was frankly an inherently unfair system.
Times Are Changing
But times are changing. Plaintiffs’ firms may now indeed be the ones holding the more significant cards. The very nature of the defense firms and their inherent advantages may be hindering them from keeping up.
For one thing, plaintiffs’ firms have gotten bigger and more sophisticated. Morgan & Morgan, for example, is one of the country’s largest plaintiffs’ law firms. It has over 1,000 lawyers with offices in all 50 states. It can do things like file some 25,000 lawsuits in one week in Florida like it reportedly did in response to a change in Florida law in 2023. It’s every bit as sophisticated as any AmLaw 100 firm and can match resources with most of them.
And for smaller plaintiffs’ firms, the advent of litigation financing has enabled them to have access to funds throughout the case. Litigation finance investors will often advance funds to the plaintiffs’ law firms handling matters in exchange for a portion of the return. This, in turn gives the plaintiffs’ lawyers access to more resources and enables them to ride out a long case with less financial stress. Not to mention the ability to handle more cases.
But the biggest change and increased leverage for plaintiffs’ firms has come from technology. There are now ample technological resources to aid the plaintiffs’ firms that did not exist before. Plaintiffs’ lawyers are using specialized platforms built mainly for them. Case management platforms like EvenUp. Platforms like that provided by Supio for document analysis and drafting, LawPro.ai for medical record summaries, EsquireTek for automating discovery responses, and DemandPro for settlement demands. Many PI firms and solo plaintiff’s lawyers are leaning on free or low-cost tools like CourtListener, Google Scholar, Descrybe and the Caselaw Access Project for legal research and docket checks.
And Anthropic’s recent announcement that it is offering some 20 new plug-ins to a variety of platforms which lawyers are using may also supercharge what plaintiffs’ lawyers can accomplish. Some of these platforms like the Free Law Project and Descrybe will enable low-cost legal research. All of this promises to cut costs and yield greater efficiencies, again reducing the defense firms’ inherent advantage.
And don’t think for a moment that plaintiffs’ lawyers aren’t taking advantage of these resources. A recent survey of some 300 personal injury plaintiffs’ firms done in partnership between Morgan & Morgan and LawPro.ai found that more than 60% of plaintiffs’ personal injury firms had adopted and were scaling AI tools.
Plaintiffs’ firms are also clearly taking advantage of the economies of scale that technology and AI bring. As I have written before, technology and AI are enabling them to take cases that they historically couldn’t because the time needed to prosecute the case exceeded the likely reward. Now that time is a fraction of what it once was. AI has enabled plaintiffs’ lawyers to do more in less time and do it better.
What About The Defense Firms?
But what about the defense firms? Somewhat surprisingly, there is an absence of any real survey data on what defense firms are doing in response. But several factors would suggest defense firms might not have been able to take maximum advantage of technology and AI tools like plaintiffs’ firms.
First, there is their billing model: hourly work makes pure time-saving tools less immediately attractive than on the contingency-fee side. And the billable hour business model is so engrained in defense firms’ culture that changing that model is hard.
I know, I did a flat fee arrangement on a national piece of serial litigation. It wasn’t a contingency fee case, but it had many similarities since profits were increased by spending less not more time. The push back from the firm was pretty significant.
In addition, defense firms and the carriers have generally been more conservative and hesitant to use technology tools due to security and confidentiality concerns. They are more risk averse. Due to their size and consensus decision making models, it’s harder for them to make decisions and pivot when times and circumstances change. So even though there is a paucity of hard data, it stands to reason that defense firms are falling behind.
Just ask some of the more tech and AI savvy defense lawyers. One such lawyer is Frank Ramos, a defense trial lawyer in Miami. I know Frank well and have presented with him several times on AI and tech. In a recent podcast interview, Frank observed, “I think defense firms, for a variety of reasons, were always very conservative. … They have been reluctant and some of their clients have been reluctant to go all in on AI. … As the reluctance takes a foothold, more and more defense firms and clients on the defense side are going to give up more and more ground to the plaintiffs’ firms.”
This squares with my experiences and observations as well.
The Fallout
So can defense firms afford to do nothing? When faced with the issue, many just badmouth plaintiffs’ lawyers and blame them for the ills of the system rather than doing anything. I always got a chuckle, by the way, when defense lawyers castigated “those damned plaintiffs’ lawyers.” I would remind them that if it weren’t for them, us defense lawyers wouldn’t have any work to do. So it’s not necessarily all bad for defense lawyers that plaintiffs’ lawyers are upping their game.
But if defense firms and their carriers aren’t keeping up, what were once their advantages may well become liabilities as plaintiffs’ lawyers become more sophisticated and get better results. This alone should be a wakeup call for defense firms and the carriers. In the long run, it means more plaintiffs’ verdicts for higher amounts. That in turn translates into higher premiums for their customers.
Moreover, the system works best when it’s a fair fight in the courtroom. But if defense firms don’t keep up, it won’t be a fair fight. Plaintiffs’ lawyers know that all too well.
Defense firms owe it to their clients, and carriers owe it to their insureds, to be as prepared and knowledgeable as their adversaries. Otherwise, the advantages of billing by the hour and having greater resources will end up upside down.
It’s high time for defense firms to up their game or face the fate of Lord Cornwallis.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
The post Technology And AI: Turning Personal Injury Litigation Upside Down appeared first on Above the Law.
“Yet let’s be content, and the times lament, you see the world turn’d upside down.”
— The World Turned Upside Down reportedly played upon the surrender of Lord Cornwallis at Yorktown.
The world of personal injury litigation may indeed be turning upside down as plaintiffs’ lawyers can now match and even exceed the capabilities of many defense law firms. Firms, who, like the British soldiers in the Revolutionary War, seemingly had all the advantages. And we all know how that turned out.
The Inherent Defense Advantages
Historically, law firms that represented defendants had some significant intrinsic advantages in personal injury cases. Defendants are usually insured, and the carriers pay most of their legal fees. The time spent on the matters by the defense firms were billed by the hour and fees were paid more or less monthly. This provided defense firms with a steady stream of revenue throughout a matter.
In addition, defense firms were typically larger than plaintiffs’ firms and had more resources. Often plaintiffs’ lawyers practiced in smaller firms or on their own and handled their caseloads while trying to run the firm business at the same time. They have fewer resources and less time to devote to their practices.
Plaintiffs’ lawyers were and are paid on a contingency basis which meant they got very little revenue until a matter was resolved. And it was in the defense firm’s best interest for matters to drag out: they got paid more and could use this fact to leverage the plaintiffs’ firms into lower settlements since they often needed the money.
It was frankly an inherently unfair system.
Times Are Changing
But times are changing. Plaintiffs’ firms may now indeed be the ones holding the more significant cards. The very nature of the defense firms and their inherent advantages may be hindering them from keeping up.
For one thing, plaintiffs’ firms have gotten bigger and more sophisticated. Morgan & Morgan, for example, is one of the country’s largest plaintiffs’ law firms. It has over 1,000 lawyers with offices in all 50 states. It can do things like file some 25,000 lawsuits in one week in Florida like it reportedly did in response to a change in Florida law in 2023. It’s every bit as sophisticated as any AmLaw 100 firm and can match resources with most of them.
And for smaller plaintiffs’ firms, the advent of litigation financing has enabled them to have access to funds throughout the case. Litigation finance investors will often advance funds to the plaintiffs’ law firms handling matters in exchange for a portion of the return. This, in turn gives the plaintiffs’ lawyers access to more resources and enables them to ride out a long case with less financial stress. Not to mention the ability to handle more cases.
But the biggest change and increased leverage for plaintiffs’ firms has come from technology. There are now ample technological resources to aid the plaintiffs’ firms that did not exist before.Plaintiffs’ lawyers are using specialized platforms built mainly for them. Case management platforms like EvenUp. Platforms like that provided by Supio for document analysis and drafting, LawPro.ai for medical record summaries, EsquireTek for automating discovery responses, and DemandPro for settlement demands. Many PI firms and solo plaintiff’s lawyers are leaning on free or low-cost tools like CourtListener, Google Scholar, Descrybe and the Caselaw Access Project for legal research and docket checks.
And Anthropic’s recent announcement that it is offering some 20 new plug-ins to a variety of platforms which lawyers are using may also supercharge what plaintiffs’ lawyers can accomplish. Some of these platforms like the Free Law Project and Descrybe will enable low-cost legal research. All of this promises to cut costs and yield greater efficiencies, again reducing the defense firms’ inherent advantage.
And don’t think for a moment that plaintiffs’ lawyers aren’t taking advantage of these resources. A recent survey of some 300 personal injury plaintiffs’ firms done in partnership between Morgan & Morgan and LawPro.ai found that more than 60% of plaintiffs’ personal injury firms had adopted and were scaling AI tools.
Plaintiffs’ firms are also clearly taking advantage of the economies of scale that technology and AI bring. As I have written before, technology and AI are enabling them to take cases that they historically couldn’t because the time needed to prosecute the case exceeded the likely reward. Now that time is a fraction of what it once was. AI has enabled plaintiffs’ lawyers to do more in less time and do it better.
What About The Defense Firms?
But what about the defense firms? Somewhat surprisingly, there is an absence of any real survey data on what defense firms are doing in response. But several factors would suggest defense firms might not have been able to take maximum advantage of technology and AI tools like plaintiffs’ firms.
First, there is their billing model: hourly work makes pure time-saving tools less immediately attractive than on the contingency-fee side. And the billable hour business model is so engrained in defense firms’ culture that changing that model is hard.
I know, I did a flat fee arrangement on a national piece of serial litigation. It wasn’t a contingency fee case, but it had many similarities since profits were increased by spending less not more time. The push back from the firm was pretty significant.
In addition, defense firms and the carriers have generally been more conservative and hesitant to use technology tools due to security and confidentiality concerns. They are more risk averse. Due to their size and consensus decision making models, it’s harder for them to make decisions and pivot when times and circumstances change. So even though there is a paucity of hard data, it stands to reason that defense firms are falling behind.
Just ask some of the more tech and AI savvy defense lawyers. One such lawyer is Frank Ramos, a defense trial lawyer in Miami. I know Frank well and have presented with him several times on AI and tech. In a recent podcast interview, Frank observed, “I think defense firms, for a variety of reasons, were always very conservative. … They have been reluctant and some of their clients have been reluctant to go all in on AI. … As the reluctance takes a foothold, more and more defense firms and clients on the defense side are going to give up more and more ground to the plaintiffs’ firms.”
This squares with my experiences and observations as well.
The Fallout
So can defense firms afford to do nothing? When faced with the issue, many just badmouth plaintiffs’ lawyers and blame them for the ills of the system rather than doing anything. I always got a chuckle, by the way, when defense lawyers castigated “those damned plaintiffs’ lawyers.” I would remind them that if it weren’t for them, us defense lawyers wouldn’t have any work to do. So it’s not necessarily all bad for defense lawyers that plaintiffs’ lawyers are upping their game.
But if defense firms and their carriers aren’t keeping up, what were once their advantages may well become liabilities as plaintiffs’ lawyers become more sophisticated and get better results. This alone should be a wakeup call for defense firms and the carriers. In the long run, it means more plaintiffs’ verdicts for higher amounts. That in turn translates into higher premiums for their customers.
Moreover, the system works best when it’s a fair fight in the courtroom. But if defense firms don’t keep up, it won’t be a fair fight. Plaintiffs’ lawyers know that all too well.
Defense firms owe it to their clients, and carriers owe it to their insureds, to be as prepared and knowledgeable as their adversaries. Otherwise, the advantages of billing by the hour and having greater resources will end up upside down.
It’s high time for defense firms to up their game or face the fate of Lord Cornwallis.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
