In the information age, data is a valuable commodity. That’s why the revenue models of some of the world’s largest businesses are based on aggregating and analyzing data. Industries such as finance, marketing and healthcare have realized the competitive advantage that data affords. If data can benefit these sectors, how can it help lawyers?
In the first part of a series about the use of data within the legal field, we will explore how litigators — including civil and business litigators as well as class action and mass tort attorneys — can leverage different types of data to strengthen their practices and inform their decision-making. We’ll cover other areas of law in future posts.
Before we get into this topic, let’s define what we’re talking about when we say “data.” There are many types of data available to lawyers and law firms, but the data we’re going to look at relates to personal, business and alternative records as well as publicly-available social media profiles. This data includes names, phone numbers, addresses, names of relatives and associates, vehicle information, criminal histories, business filings, judgments, bankruptcies and employers, among other records. Some of this information is available publicly, while other data points require access to private databases.
So, how can litigators take advantage of data and data analysis? Here are seven ways to unlock the power of records information in the practice of law.
A client-attorney relationship is not unlike a any relationship. For the relationship to work, you have to trust each other. It’s a good idea to conduct a background check on new clients before you get too deep into the relationship. By mining data related to your client, you can confirm their identity and contact information; identify any red flags, such as judgments entered against them or criminal histories; and review their assets to ensure they are able to afford your services.
As you embark on your case, you’ll also want to conduct initial due diligence on your opposition. Even a simple records search can reveal critical information that can help strengthen your case. For example, you can check the opposing party’s criminal convictions and arrest records, litigation history, current and previous employers, business affiliations and associates, and aliases. You can also get a sense of your opponent’s financial situation — which can be critical if you are seeking monetary damages — by checking records related to assets, bankruptcies, liens and foreclosures.
Facebook has approximately 2.8 billion active users. Instagram has nearly 1.2 billion. And Twitter has about 353 million. These sites and other publicly available social media platforms provide litigators access to a treasure trove of information that can dramatically affect a claim or defense. Take the example of a personal injury case falling apart after the plaintiff posts a photo of themselves doing a strenuous activity. While some users set strict privacy controls on their profiles, making them inaccessible, many do not. Taking advantage of this data source could help your case.
Vetting witnesses, particularly expert witnesses, is an important part of building your case. You want to make sure your experts have the proper credentials to prevent the court from throwing out their testimonies. Likewise, you want to vet your opposition’s witnesses to raise any issues of credibility. By accessing and reviewing records, you can help confirm or refute an expert witness’s professional licenses and scan their background for any history of criminal activity or civil entanglements, both of which could call their character into question.
While some jurisdictions may have restrictions preventing certain types of data mining to inform jury selection, others allow it. (Check your state bar association’s rules to confirm.) If permissible, investigating the background of potential jurors can help you build an argument for or against a jurist. For example, a prospective jurist’s current and previous places of employment could bias them for or against a business or industry, creating a possible conflict of interest.
One of the most valuable use cases for data mining public and alternative records is estimating class size in class actions and mass torts. By establishing time and place parameters as well as demographic search criteria, you can acquire a snapshot of the number of people who may be involved in a particular case. For example, if you were filing a class action that alleges damages due to industrial waste in a water supply, you could search for records of all residents and business owners within affected areas during the time range in which the alleged polluting took place.
One challenge of class action lawsuits is the requirement to notify members of an established class. Finding and verifying class member information, including names, addresses and email addresses, can be a time-consuming process. To make the task even more difficult, this information is always changing. People move, get married and undergo other life events that result in alterations to their personal information. Records searches not only help you verify class member contact information, they can also help you maintain good data hygiene. By comparing a list of current class member information against a repository of up-to-date personal records, you can easily identify changes and update accordingly.
The first step to using data to enhance your legal practice is to get access. There are a variety of ways to tap into data stores, including Internet searches and public records databases, though results may vary.
TransUnion offers the legal industry several data solutions that provide lawyers with access to billions of data points. Its online application, TLOxp®, enables lawyers to search public, business and alternative records via an intuitive interface. For litigators with large data needs, such as class action and mass tort attorneys, TransUnion offers batch processing and monitoring services. These batch services apply lawyer-defined search criteria to vet and retrieve thousands of relevant records.
If you’d like to learn more about TransUnion’s data services or if you’d like a demo of TLOxp, click here.