Judicial Analytics in the Time of Corona

It is an uncertain spring. The number of coronavirus-related complaints filed in federal and state courts across the United States continues to rise at unprecedented rates. Many of these legal actions are testing contemporary legal understandings of negligence, causation, and liability, terms that had previously been defined and adjudicated in contexts of relative normality.

Nobody is certain how judges will handle these cases. This uncertainty is compounded by an ever-shifting legislative landscape, as public policymakers write immunity measures and liability shields into new laws and executive orders. What is clear, however, is that the rulings from this first wave of coronavirus-related cases have the potential to break new legal ground. But will they?

Quantitative Barriers to Judicial Analytics 

Employment termination, wrongful death, breach of contract, and insurance coverage claims circulate at the center of this legal tsunami. "We're seeing a collision of old laws and frameworks for just that will be colliding with all new facts," observes Barb Dawson, chair of the Litigation Section of the American Bar Association. In such an unprecedented legal environment, it is hard to anticipate how judges will rule on any particular matter.

The uncertainties circulating within a post-coronavirus courtroom may make quantitative approaches to judicial analytics difficult to interpret meaningfully. The lack of legal precedent for catastrophic events and the massive scale of the coronavirus pandemic are bringing together case law and legal concepts that have not received widespread attention in decades. This means that the data might simply not yet exist in quantities large enough to establish statistically significant correlations.

This doesn't mean that judicial analytics isn't useful. It may just need to be approached in a different way. That is, qualitatively. We may not yet be in a position to make broad generalizations about the ruling tendencies of a particular judge in a coronavirus-related case. We can, however, do something else. As coronavirus-related rulings begin to trickle through the courts, we are already gaining insights into the types of arguments that resonate—or don't resonate—with trial court judges.

A Peek into the Mind of a Judge 

So far, judges have been hesitant to apply creativity and flexibility to their interpretations of case law in coronavirus-related lawsuits. To give an example, many courts have offered narrow interpretations of business interruption insurance contracts. When asked whether or not COVID-19 particles can cause direct physical loss or damage to property, one federal judge in New York ruled no, stating that the coronavirus "damages lungs. It does not damage printing presses."

With statements like this, litigators can begin to perform qualitative analyses of judicial rulings, identifying the lines of argumentation that judges have found to be persuasive or unpersuasive. That is to say, litigators can use the very words of a judge in their own pleadings, crafting

arguments that mirror how a judge thinks. Such an approach to legal analytics takes ingenuity, as it requires taking bits and pieces from one judicial ruling and applying them to new contexts.

This technique is particularly powerful in contract dispute claims, where the specificities of language play such a vital role. The coronavirus pandemic has brought these types of claims to the forefront, raising all sorts of questions about the limits of all-risk insurance policies (policies in which anything that is not covered must be expressly noted). With the help of third-party platforms, a litigator can search through archives of tentative rulings involving all-risk insurance policies in order to understand how contract-specific language can affect their burden of proof requirements. For example, a litigator might study past rulings on force majeure clauses, identifying how, exactly, non-performing parties have successfully demonstrated that an Act of God was both unforeseeable and responsible for a breach of contract.

Locating the Certainties in an Uncertain World 

The coronavirus pandemic has unleashed a host of new uncertainties into our lives. Judicial analytics may not be able to tell us with any degree of statistical certainty how a particular judge will rule in the first wave of coronavirus lawsuits. There may be too many contingencies, too many variables. Judicial analytics can, however, help us craft our arguments with particular judges in mind, presenting us with one example after another of something much more powerful—insights into how to build a case that resonates with how a judge thinks.

Nicole Clark is a business litigation and labor and employment attorney who has handled litigation in both state and federal courts and is licensed to practice law in three states. She has defended corporations and employers in complex class action and wage and hour disputes, as well as individual employment matters ranging from sexual harassment to wrongful termination. Additionally, Nicole is the CEO and co-founder of Trellis Research, an AI-powered legal research and analytics platform that gives state court litigators a competitive advantage by making trial court rulings searchable, and providing insights into the patterns and tendencies of opposing counsel, and state court judges.