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The Best Litigators I Know Read Cases <\/h2>\n
Not every day. Not every case. But when a critical issue of strategy, analysis or judgment turns on a knotty question of law, they aren\u2019t going to just ask a junior lawyer for the answer. They are going to dive in and read the key cases themselves.<\/p>\n
\u201cFind me the cases.\u201d <\/h3>\n
For 20 years as a litigator, first as an associate and then as a partner, that was the request I received from senior lawyers or made to junior lawyers.<\/p>\n
Why? It\u2019s because reading the cases \u2014 the key, relevant cases \u2014 is not grunt work. It isn\u2019t something you want to push off on a less experienced colleague. To the contrary, it is one of the places where you can bring all your experience and judgment to bear to determine your best way forward.<\/p>\n
It\u2019s while reading cases that you have thoughts like \u201cnone of these courts have ever really faced facts like ours,\u201d \u201cour issue is a loser unless we can reframe it this way,\u201d or \u201cwe may survive this motion, but we are going to need to be ready to explain X to the jury.\u201d It is, in short, one of the times where your judgment and experience as a lawyer really matter and you are really bringing value to your clients.<\/p>\n
Which is why it\u2019s strange to me that legal AI seems to be gravitating toward taking that work away from lawyers.<\/p>\n
When you don\u2019t want an AI answer.<\/h3>\n
Most AI research tools are designed to produce an answer: a grounded, footnoted response to a question you typed. That is genuinely useful for some work, especially if it is low stake. But for things that matter, for the legal issues on which a tactical or strategic decision hinges, it is,\u00a0by definition,<\/em>\u00a0taking away your ability to be creative and analytic about how to use the underlying cases in your legal argument.<\/p>\n Put another way, an AI summary of a set of cases is, by design, a reasonable, well-worded, articulate\u2014and decidedly average<\/em>\u2014distillation of the answer you want. And for the most part, that is not what you want. You don\u2019t want the AI answer; you want the AI to help you get to your answer<\/em>.<\/p>\n For that, you need to read the cases. <\/p>\n Let me give a few examples:<\/p>\n A client calls about a new matter, or an old matter takes a turn, and you have an hour before the call. What you need is not a memo. You need to have read the six or seven opinions that actually govern the question, so that when the client asks whether anyone has ever won on this, you can answer from the cases instead of from a summary of the cases.<\/p>\n The difference shows up immediately in conversation. A lawyer who has read the opinions can handle the follow-up question. A lawyer working from a summary has to say they will look into it.<\/p>\n This is the request that answer-generating tools handle worst. You have a theory. It might be creative, it might be a stretch, and what you want to know is whether any court has ever gone there, and if so, what the facts looked like.<\/p>\n A tool that gives you an answer will give you the general rule. The general rule is usually the thing you are trying to get around. What you need is the outlier: the district court that took the argument seriously, the concurrence that left a door open, the case with facts strange enough to be useful. Those do not survive summarization. They have to be read.<\/p>\n Opposing counsel cites 11 cases for a proposition. Some of them stand for it. Some are cited for a sentence buried in a footnote. You need to know which is which, and whether any court has gone the other way.<\/p>\n That is verification work, and it goes faster when you start from the opinions rather than from someone\u2019s description of the opinions. It is also the moment where a mischaracterized citation does the most damage, in either direction.<\/p>\n A demand letter, a discovery dispute letter, a settlement proposal. You are making a point that would land harder with a citation behind it. You are not writing a brief and you are not spending three hours. You want one good case, correctly characterized, in the next 20 minutes.<\/p>\n Small task, constant occurrence, and historically awkward to staff. Too small to hand off, too slow to do yourself between other work.<\/p>\n Here\u2019s what\u2019s ironic. While current AI tools are tuned to tell<\/em> you the answer \u2014 the thing they are decidedly average at (not bad; just average), they are actually capable of being quite good at the thing you really want: \u201cfind me the cases.\u201d Or in some cases, find me the cases and point me to the relevant sections.<\/p>\n I know AI is capable of doing that because, along with many other lawyers I know, I am using AI to do just that: find me the cases. (Full disclosure, I also know AI can do that, because I\u2019ve actually built an AI tool designed to do exactly that \u2014 and only that, and it works really well.)<\/p>\n Of course, if you go about it this way, the reading is left to you. Intentionally. That part has not been automated and should not be. Reading opinions is how you develop a feel for a body of law, and it is where the arguments come from that the other side did not think of. <\/p>\n Handing the AI the annoying part, sorting hundreds of opinions down to the 30 that matter, is a good trade. Handing AI the reading is not.<\/p>\n Sam Davidoff is the founder of Align, a litigation technology company and the maker of <\/em>Align Research<\/em><\/a>. He spent <\/em>20 years as a litigation partner at Williams & Connolly.<\/em><\/p>\n1. Getting Smart Before a Client Conversation<\/h2>\n
2. Strategy: Could We Argue This?<\/h2>\n
3. Reading the Other Side\u2019s Brief<\/h2>\n
4. <\/strong>The Letter Cite<\/h2>\n
What to Ask a Legal Research Tool<\/h2>\n
\nMore Trial Preparation Tips From Sam Davidoff<\/h2>\n