Data-Driven Legal Guidance
Ed Walters Talks to Tom Hagy for the Emerging Litigation Podcast  

Interview

SPEAKERS

Tom Hagy, Host, Emerging Litigation Podcast
Ed Walters, CEO & Founder, Fastcase (see complete bio at end of this document)

PODCAST
https://hb.worryfreeweb.com/data-driven-legal-guidance-with-ed-walters/

Tom Hagy  

Hello and welcome to the Emerging Litigation Podcast. I’m your host, Tom Hagy. Today we’re going to talk about the weather, but only for a minute. Mostly we’re going to talk about big data. I don’t know how many of you are weather nerds, you know you’re out there. But you may have the Weather Channel app on your phones. Those of you who do might have noticed a few years ago, it became an IBM Business. You might ask why? I’ll tell you. Deep Thunder is the name of IBM’s weather monitoring and forecasting system that combines Big Data, supercomputers and physics to create highly localized and accurate weather profiles and predictions for a given area. The launch of deep thunder came about after IBM first invested in the Weather Channel as part of a multibillion-dollar foray into the Internet of Things creating a division bearing that name, IBM and the weather channel. So their collaboration would help industries quote, operationalize their understanding of the impact of weather on business outcomes. That makes sense when you think about the economic impact of snowstorms and hurricanes, or even less dramatic but vitally important weather conditions like rainfall to farms, snowfall to ski resorts, adverse weather that keeps shoppers away or slows down transportation, delaying the arrival of goods and even humans. Think about outdoor products, machinery and building materials which are built for say 100-degree weather. But what happens when it’s 120 degrees. So many industries need good weather, something that’s getting less predictable with climate change. It’s also bringing us more severe conditions, more rain, less rain, more cold, more heat, drier forests, more fires, etc. So you get that IBM wants to bring more precision to weather forecasting via Big Data. While businesses or individuals really crave meteorological precision. I know I do. They also crave precision when making legal and business decisions. Lawyers get asked, “what’s our case worth? What size, verdict or settlement might we get? Where should I file my case? What are the chances our judge will grant a summary judgment? Should I even bring this lawsuit?”. Lawyers draw on experience to offer their best advice, providing ranges followed by careful caveats, and usually preceded by the most lawyerly of lawyer answers? It depends, as my guest points out, lawyers also get business related questions too and business-related answers, while they may begin with it depends, usually must end with a number of some kind. When a CEO asks you how much more revenue you’ll generate with a million-dollar investment, more than we are now is not the kind of answer they’re really looking for. I know. I’ve tried. Lawyers who seek greater precision in their predictions and the clients who like that too, to take comfort in the increasing sophistication of analytical tools that can evaluate massive troves of data and account for myriad variables. Not only are we seeing advances in machine learning, artificial intelligence and language processing, but there’s greater access to important litigation related data, big data, than ever before. Using new technologies to comb through millions of records combined with an attorney’s insights and experience can not only sharpen attorneys predictive capabilities, but help them build, defend and resolve cases. So for instance, the past, present and future legal guidance and analysis, I’ve got with me, Ed Walters, co-founder and CEO of Fastcase, the legal research and software company whose divisions include Fastcase full court press, which is publishing, Law Street Media, which is legal news, Docket Alarm, which provides all kinds of docket tools and services and next chapter software. An entrepreneur, writer, Professor Ed brings to the podcast his experience advising Global Fortune 500 Tech and pharma companies and sports leagues, serving in the White House on media affairs and speech writing, and contributing to several major newspapers and journals, and is also an adjunct professor at the law schools at Georgetown and Cornell Universities. One thing not in Ed’s bio is his fascination not only with legal data, but with weather and weather data, which is what sent me down the path of understanding why in the world, IBM would buy weather channels’ digital assets. I hope it will warm Ed’s heart that I found a way, as tortured as it might be, to tie weather data and legal data into one podcast introduction. I should also note, because it should be obvious too, that Fastcase and Law Street Media are also my partners on this podcast and the editorial companion, the Journal on Emerging Issues in Litigation. It’s also a joint project with us. So with that, here is my interview with Ed Walters of Fastcase. I hope you enjoy.  So Ed Walters, thank you very much for doing this today.

Ed Walters  

Great to be here, Tom. Thank you.

Tom Hagy  

I’ve introduced the subject, and I’ve introduced you. And generally we’re talking about using data to help lawyers make more precise, or give more precise guidance. Perhaps that would be one aspect of what we’re talking about today. And maybe make better decisions. But so I thought I’d start off just kind of put it in context around what are the most common questions attorneys get asked by clients that we might be able to use data to answer?

Ed Walters  

Sure, that’s a great question. And some of the questions that lawyers get aren’t even like legal questions. Some of the questions are, “Am I paying a market price for this thing that I’m buying? If I’m hiring an executive, is the salary that I’m offering, kind of market for this type of executive?”. Some of them are legal questions, you know, if it’s a litigation matter, the questions are, “How much is this going to cost?” Or “Are we going to win?” Or “How long is this going to take?” And this is an interesting disconnect between lawyers and businesspeople. You know, for a businessperson in a business, they’ll have to put something in the budget for 2023. A number, it can’t be it depends number, it can’t be x times $695 for the associates time. There has to be like an actual budget for the thing. And the company is going to have to allocate money for that, that they can’t spend on anything else. And if it costs more than they have to claw it back from somewhere else. And so these kinds of questions on the business side, have to be very precise. On the legal side, they almost can’t be. And so, you know, these questions, I’ve been talking about this in a corporate setting, but obviously, for people law, as Bill Henderson calls it, you know, the kind of practice law that is not dealing with corporations, if it’s family law, if it’s criminal law, you have the same kinds of questions. Should I take this plea deal? Does this make sense? You know, what does it mean if my spouse gets custody for part of the time? And so, in general, these questions tend to be quantitative. How long is this going to take? How much is it going to cost? What are our chances of winning? And as a profession, we have a very limited ability to give quantitative answers to these quantitative questions. We tend to give kind of directional answers or aspirational answers. So I practiced for a while before working with Fastcase and I’m well familiar with the difficulty, right. But now, on the other side of the fence, you know, Fastcase serves lawyers and law firms. We’re also a business and we employ law firms and lawyers. And whenever I asked, you know, a potential law firm partner, how much is this going to cost? Invariably, the answer is, nobody in the world knows, that’s a totally unknowable number. Could be a lot. Could be a little, it depends. And as a businessperson that drives me crazy, right? There are a million things like this in the world, where you get non “it depends” answers where you get very specific answers, even in not very sophisticated, you know, markets. If you want to level land, for a building, the cost of that will depend, it’s gonna depend a lot on what they find when they excavate or, you know, but you have a fixed price quote at the beginning of the process, they know exactly how long it’s going to take and how much it’s going to cost. And they spec that out. Not because it’s super unknowable, but because the contractor absorbs that risk. You know, they price the risk into the estimate. Doctors do this with medical costs, accountants do it when they file your taxes. Restaurants do it when they tell you what the cost of your meal is going to be. There’s a million places where you ask quantitative questions and get back very specific, quantitative answers. Right, but law is not one of those places.

Tom Hagy  

No and it does remind me – earlier, much earlier in my career, how I probably drove CEOs crazy when I was coming from a small business and mostly focusing on journalism. I wasn’t always asked those kinds of questions that had a precise number at the end. So when I would propose something that we ought to do with, you know, legal news or something, they’d say, Well, why? I’m like, because it makes sense. And people will like it. Well, how many people will like it and what will they pay? I don’t know, I just know they will, you know. And then after a while, I would come up with a budget number, okay, I see what they want now that I’d come up with a number and they say, can it be more? I’m like, you’re wanting to raise my forecast I just went with? And so it kind of turned around. Well, why do you want it to be more? Because we want it to be more.

Ed Walters  

Maybe one thing I can just add to that. You know, the quantitative answers to these legal questions aren’t unknowable. They’re just unknown. And part of the reason they’re unknown is that we haven’t really asked the question. We haven’t been forced to. And so as a profession, we could know the answers to some of these questions, you know, maybe not to the dollar, like how much will this cost, but we could estimate it out. And we could price it so that the, you know, the risk of the over and under risk is kind of borne by the firm, the party who has the most information about what that engagement will probably look like. And so it’s not that law is a magical snowflake profession that is unique and different from every other profession in the world. These things are true with accounting, or medicine or marketing or other things, right. There’s always going to be risk that you estimate a cost that’s too much, or too little. But I think the truth of it is, it’s not unknowable. It’s just unknown. And it’s unknown because we don’t ask the right questions. It’s unknown because we haven’t been made to ask the right questions. But I think that day is coming.

Tom Hagy  

And I do think for maybe less sophisticated clients, they’ll defer to a lawyer who might say it’s not knowable. It’s like, oh, okay, well, if they say so, you know. It’s gonna depend on a lot of things. I can’t give you a precise answer. But, you know, if they’re a really sophisticated client they may say, well, I think you can, and maybe like you said, they’ll actually ask that question, and want some specificity. Right? 

Ed Walters  

Yeah, I think that’s right. I mean, as a client, I’ll just say too, I don’t necessarily need a lawyer to say, here’s a fixed price for the engagement. You know, I would want them to say, here’s a distribution of costs for matters like yours from the past.  We’ve done 38 of them, you know, the average is 18,000. The mean is 18,000. The median is 19,000. You know, there’s a handful of these that cost more, because of facts that aren’t present in your case. So, you know, you can budget for the media, and maybe it’s over, maybe it’s under, you know, it doesn’t even have to shift all the risks to the law firm. It’s just allowing clients to make decisions in the presence of that knowable information.

Tom Hagy  

Yeah. Yeah. And, as a client, in the past, I’ve always been comfortable with ranges. You know, give it to me straight, I’m an adult. I realized that, you know, it’s like, when you’re doing renovations on a house, I know you may knock out a wall and find out, oh my God, it’s filled with asbestos or whatever, those things can happen. 

Ed Walters  

Or in medicine. If you are trying to figure out, you know, how should I treat this early-stage cancer? Like, you know, doctors don’t give ‘it depends’ answers. They’ll say like the frequency of recurrence, if you take this treatment is 40%. Right. And your average life expectancy after this treatment is six years on average. I’m not guaranteeing that you’re not going to have a recurrence of cancer, I’m not guaranteeing that you’re going to live for six years, but I’m going to give you the data that allows you to make the decision. If I can be kind of nerdy about this … 

Tom Hagy  

Go ahead. 

Ed Walters  

And maybe not for the first time on this short conversation. 

Tom Hagy  

Right. Why stop now?

Ed Walters  

I’ve been reading this book called The Great Pandemic by John Berry. And it talks about the Spanish flu pandemic of 1970. But more than anything, it’s a history of medicine as a profession. And what’s fascinating about it, I don’t think I realized this in the early 1900s, certainly the late 1800s. Medicine wasn’t a science, so doctors would treat patients based on anecdotes or stories. It was mostly an art of keeping people comfortable while their bodies heal themselves. Nobody knew a cause disease. You know, why are you sick? Nobody knows. It’s totally unknowable. During that time, right around the Spanish flu pandemic of 1917, a group of doctors basically said, we can actually study health as a science, we’re going to understand what the causes of disease are. And that might guide us in how to treat the diseases. And when we’re judging what’s effective in treating disease, we can treat it as a science, we can have a hypothesis, we can study it using the scientific method, we can see comparably what works against a control group, and what doesn’t work. And we can publish those findings so that doctors everywhere can have the benefit of it. Science led medicine to become a profession, instead of a religion in the early 1900s. Law is still a religion. But there’s no reason why we couldn’t have science that allows us to become a profession, in the 20s, now, right 100 years later. And that really is, the medical story is a story about data. It’s a story about medical researchers who would conduct experiments and who would collect data, and you would draw conclusions from that data, you can’t have medicine as a science, unless you have data, right. And that, for me, is the lesson for law. You can’t have law as a science until you have data. And we are in the early stages of it now. But you can start to see that data rising out of law. It’s right now kind of a waste byproduct of law, it’s exhaust in some way. Law firms will handle legal matters. They’ll close the file. There’s all kinds of data that sort of comes out of that. But it’s treated as waste. It’s sort of thrown out in some ways. 

Tom Hagy  

Yeah.

Ed Walters  

But this is this is what I’m excited about in kind of big data analysis, data analytics, and quantitative understandings of law, some of which we’re starting to work on at Fastcase now.

Tom Hagy  

What kind of tools are out there that are helping attorneys leverage big data to make these decisions and do these analyses?

Ed Walters  

The first thing I think of is data collection, and the tools for data collection are getting more and more sophisticated. So I think of like Contract Lifecycle Management Software, as an example, that’s not one that’s I’m not pushing a Fastcase product here. CLM products. There’s, we don’t even offer one, but for the first time, they are collecting contracts and comparing the obligations that a company has signed themselves up for in these contracts, you know, and the metadata knows, like how many contracts are up next year, in a way that companies have not known. They know what the different disclosure obligations are, under the confidentiality provisions in all contracts. It’s interesting, CLM tools are allowing companies to understand contracts as data and understand the multi various obligations of a company in a quantitative way. I think docket software is a great example. And this is self-promotional, Fastcase’s Docket Alarm product, I think is a real leader in this space. The idea of docket tracking in the past has been just telling me when something happens in one of my cases, so I don’t miss it. The data from that is kind of considered in the past a byproduct. In Docket Alarm, we are collecting this data and ingesting it and really understanding it. The combination of Docket Alarm and Judicata, the technology that we kind of acquired in 2020, really helps us to understand what happens in dockets quantitatively. Judicata’s technology reached through now more than 700 million PDFs, docket sheets and complaints and answers, briefs, pleadings and motions to understand quantitatively what’s happened, to understand what the seasonality of litigation is against Starbucks, what law firm is most effective in litigation for Liberty Mutual, how aggressive Google is in IP litigation, what the cases sort of look like. And out of that data, when you’re able to extract those important data points, from the PDFs, from converted documents, that’s really when the magic happens. For the first time now you have a historic data set that you can begin to run regression against. You can try and figure out based on what’s happened in the past what’s likely to happen in the future. You can test hypotheses – did this big initiative that we ran in 2018 result in less litigation? Which law firm is able to resolve these matters with the highest win rate? Which individual lawyer in the firm is the most effective? The answers to all of these kinds of quantitative questions are in the data. For the first time, with Docket Alarm and Judicata, we’re really able to understand that data in a quantitative way and that’s the path forward. I talk sometimes about the early almanacs as being a precursor to satellite weather maps on your phone. Before the almanac, nobody knew when to plant or harvest, people got it wrong all the time, it was a huge amount of waste, and a lot of risk for farmers and people who rely on the food that they produce. In the 1800s, people began to track the data, they didn’t know they were data scientists, they were farmers, right? Because they were tracking things like when it would rain, or what the temperature was, when the sunrise was, and when the sunset was this data became really useful for farmers. You know, if they’re trying to plant for 1908, nobody knows what the weather is going to be like in March of 1908, and February of 1908. But you can look at the last 10 years of data for the place that you’re in, and see what the average temperature has been that at least gives you some idea better than rumors or witchcraft, or..

Tom Hagy  

There’s my arthritis acting up. 

Ed Walters  

Yeah, yeah. Right. Exactly. And so, you know, for the first time, farmers could say the planting season is going to run on average from, you know, planting on April 4, and harvesting on September 10. And, you know, you can sort of adjust as necessary, but at least you have some data, you know, that kind of data from Farmers Almanac became the precursor for weather forecasting and weather prediction. And I think you have the same thing in medicine, you have the same thing in marketing and sports. If you have that kind of data collection, and a way of tagging it and understanding it, then you really have a way to forecast it out. And I think that is maybe obviously the path for legal services, we will have to collect that data across litigation and contracts and you know, risk and a whole bunch of other areas and intellectual property. And then we’ll have to, you know, tag that data to understand it. We’ll have to pull out the names of parties and what kinds of matter it is, dollar values and things like that. But when we have that, for the first time, we can study law as a science. And law as a science will give us better predictability, better answers. And by the way, I think it’s obvious to also vastly expand the market for legal services. You know, right now, we’re an hour’s in documents business, but we could be a risk mitigation business, we could be a big data business, we can help companies understand themselves in fundamental and new ways that can be very powerful and very lucrative. And I think more families will use lawyers if they understand what the costs and durations are differently.

Tom Hagy  

First thing I don’t think most people are going to know about you, that you are a..

Ed Walters  

Giant nerd? Yes.

Tom Hagy  

A weather enthusiast.

Ed Walters  

A weather enthusiast, a poker enthusiast, a history of medicine enthusiast. I’m just a curious person.

Tom Hagy  

Okay, well, nerds are in, I don’t know if you know that? They’re very in now.

Ed Walters  

I’ve been waiting for years for this to happen. Thank goodness.

Tom Hagy  

I think Marilyn Monroe first established that with, I forget which, who was it, Arthur Miller? Maybe, he’s so small. But then she went to DiMaggio. I don’t know why I’m talking about Marilyn Monroe all of a sudden, but the things you raised, you raised a lot of questions in my mind. You know, it did make me think to a podcast I did, one of these podcasts. They were attorneys in Europe. And they came up with an app that you could go to their website, and you can answer a series of questions and it will kind of rate the security of your IP asset collection. And they were applying AI to it. I thought this is ingenious, you know, now they were doing something for free that you can use. And then the user can get an answer of some kind that oh, wait a second, I need to do a better job protecting my intellectual property. But they obviously did it also to generate clients, you know, they might say, Oh, my gosh, I’ve got a bad score. Maybe I should write you guys and have you advise me on protecting my IP. So there’s there’s a case where somebody’s trying to use it. I don’t know whether it’s working for them or not. But I thought that when you think about lawyers, maybe I always think that they’re the most creative, innovative people, but a lot of them are obviously. The thing that you raise too was, you know, you didn’t want to talk so much about products. But I do want to talk about products. So what is an example when you talk about using Docket Alarm? I mean, I don’t know if docket alarm does this, because I use it a lot. I like Docket Alarm quite a bit. And it’s intuitive. I don’t know, I just get it. And it works for me. But it also tells me in a case, what’s coming up. And I don’t know if that’s something that you would normally get from like pacer or something? Or if it’s something that’s pulled?

Ed Walters  

No, it’s unique. It’s kind of like magic. The number one cause of malpractice for lawyers in the United States is missed deadlines.

Tom Hagy  

I can imagine. Yeah, I would think so.

Ed Walters  

Right. So one thing that Docket Alarm does, you know, I don’t preach AI very much, but one thing that we are doing in Docket Alarm is we’re using artificial intelligence to read a docket sheet, to read the documents in the docket sheet, and to extract deadlines. If a court says we’ve got a conference on November 26, Docket Alarm will pull that out and create a calendar event that you can import into Google Calendar or Outlook. So you don’t miss it. It’s really good about that. One other thing we’re doing is to read docket sheets and then to create this beautiful visual map of what’s happened so far in the litigation. It’s not so useful if there’s only two or three events. But if you’re in one of the larger litigations that’s gone on for years, instead of reading through, sometimes 1000s of docket entry to try and figure out what happened, looking at a visual map so you can see where the pleadings are and where the motions are, and where the rulings on the motions are, is really useful. And then we’ve used that kind of predictive science. So if you hover over any of those kinds of motions, or orders in the map that Docket Alarm creates, we can show what the likelihood of success of that motion is, in that court before that judge, for that cause of action, in a way that’s really unprecedented. No one has ever had that kind of motion analytics, in this visual map, it’s super easy to understand. And it really is like the the birth of a science, you know, for the first time when you have that kind of data collection and state and federal courts, when you have the ability to extract the data out of PDFs, and then to understand it at scale. Then for the first time, you can see, look, someone has filed this motion adverse to us, but they only ever win that motion 8% of the time. So maybe I don’t need to worry so much about that. Or if you’re a client, and your lawyer says we should file a motion of this sort, you can see for the first time, our chances of success here are like 16%. And it seems like this motion is going to cost us $58,000. And maybe that’s not worth it. You know, maybe we should spend that money somewhere else in the litigation or somewhere else in the business. You can’t do any of that without the data. And so Docket Alarm inside of Fastcase is really the an attempt to make law, a science, not a religion.

Tom Hagy  

It just seems like it has so many applications even like for managing your team or managing your law firms. If your counsel you can say, you know, I can see which firms may be doing better in this area of law or which lawyers are doing better, or getting better results in this area of law. Right? 

Ed Walters  

Yeah, there’s a million ways you can use that data. One of the ways people are using it is to hire lateral associates, right? Or partners, by looking at, you know, how well they’ve done. And you can say, like, look, you know, for this court that we practicing a lot or for this client that we practice, for a lot, who’s the best, you know, lawyer representing them. And who does she work for now, let’s hire her as a lateral because she’s got, you know, rock star success for this client, who’s important to us.

Tom Hagy  

And now I’m thinking, you know, if I’m a lawyer, I want to know what my data says about me.

Ed Walters  

Right. 

Tom Hagy  

 Is it saying I’m a big loser in this area? Or what? You know what I mean? And oh, wait, it says I’m losing more than I’m winning, but there’s reasons for that. So I guess, as a lawyer, I’d want to know how I show up, wouldn’t you?

Ed Walters  

Absolutely. And, you know, like one thing that law firms use Docket Alarm for is lawyers and law firms just never know if they are gaining or losing business for a client. They can see only the matters that they have. But when you have that kind of big data, you can see, look, we had 18%, in 2019, 22% in 2020, 27%in 2022, but 9% in 2023. And so by  sort of looking at it over time, you can see, oh my gosh, even though we have more matters this year, we have a lower percentage of this company’s business, and we didn’t even know. And so as a strictly defensive business development metric, you really want to have that data. When we look back in 2030, when you and I have this conversation again, people will not be able to believe that we ever operated without this information. You know, it’s gonna be like, how could you possibly operate that way? At some point, I’ve got a 14 year old son, I’m gonna have to explain to him how you would get a cab in the 2000s. 

Tom Hagy  

Right.

Ed Walters  

You know, and he’s gonna say, like, let me get this straight, you would sort of walk out to the street, and like, put your hand in the air, and hope that a taxi would come by, you know, how would you know that you are going to get there in time? Like, how would you know you’d have enough money to pay the taxi. That’s insane. 

Tom Hagy  

It’s ludicrous. Who came up with that idea?

Ed Walters  

And yet, that’s how we did it for 100 years. And so, you know, at some point, you know, we’ll look back on this era, and it will be very much like putting our hand in the air for a taxi. Doing this blindly, is going to seem bonkers. And you know what, our team at Fastcase and Docket Alarm is going to make sure of that. It will absolutely. You can’t convince me, this won’t be a science in 10 years.

Tom Hagy  

But it does remind me talking about explaining taxis to your son. As somebody who has straddled the world of driving and getting lost and having maps, and then handwritten directions versus having GPS, I can’t believe, I mean, I used to get lost all the time. Ohio, where I grew up was very flat, it was very easy to say, oh, just go that way. But, you know, then when I moved to the East Coast, all I know is this –  I was playing some music with some friends out here in Chester County – we’re in the country. And I went and played some music in a place where I don’t know where I was and on my way back, I was relying on GPS. And I came up to an intersection or I had a choice, there was a fork in the road with three different ways to go, pitchblack. And I suddenly had no internet connection. 

Ed Walters  

Oh, no. 

Tom Hagy  

I’m sitting there in the dark. Thinking, I’ve got to go. And I have no idea which way to go. I’m thinking, I’m just gonna have to sleep here and wait till morning or till somebody comes along.

Ed Walters  

But Tom.

Tom Hagy  

 Yes. 

Ed Walters  

Clients of law firms are perpetually at that fork in the road in the middle of the night. That is the state of our profession today. They have no idea where to go. The consequences of choosing wrong are very high. And so all we want to do is bring GPS to that intersection, and legal services.

Tom Hagy  

I’m glad I could provide you with that metaphor. But I was really in a little bit of a panic, like, oh my God, I am completely reliant on GPS. No idea where I am. So I mean, I did have other questions, but I think we’ve covered a lot of them. You’ve given a lot of real life examples. And what I don’t think a lot of people know is that they can do a lot of what you’re talking about right now. I really wonder how many attorneys know they can do those things? Where does technology fall short right now, do you think? Or is it the data that we have gaps in? What needs to be filled right now to make all of this really give everybody the GPS? 

Ed Walters  

Yeah, great question. So one of the biggest challenges I’ll say that we face, this is a kind of a local challenge, is that a lot of courts don’t make the data available. Right? So we’re we’re downloading this data from court management systems. And where most of them are electronic, it’s easy to get the data. There’s lots of courts where it’s still on paper. There’s lots of courts where they charge for it. So Pacer is a huge impediment to law as a science. If we had access to the documents in Pacer, we would understand law so much better. And we would be able to provide lots of services to lawyers, lawyers can provide a lot of services to clients that they can’t currently. There’s a bill that has passed called the Open Courts act. It has passed the house and the senate and it is currently in reconciliation. And that has the ability, it is said that it wants to make Pacer free. And so there’s good hope for that to come through, I think that it fills a big hole in the data. There’s going to be a treasure trove of information pulled out of that kind of federal litigation history. But federal is only like a small piece of this, right. 

Tom Hagy  

True. 

Ed Walters  

So every state you sort of think about as a monolith. But every county usually has a different filing system. And so every county clerk has, you know, either an electronic filing system or a lot of filing cabinets. And, you know, somehow you need to get the data out of those. I think we’ve got, you know, a couple of good ideas there. But the availability of the data is a huge impediment to understanding law as a science.

Tom Hagy  

Well, since you’re a self described nerd in this area, what new technologies I mean, that you’re watching that are exciting you? I mean, this is one or are there technologies that excite you within this  framework of data or other things that are going to affect the practice of law?

Ed Walters  

Yeah, so I’d say a frontier for us, something I’m excited about, is understanding legal matters and next steps better. You know, I mentioned before, we have more than 700 million docket sheets, briefs, pleadings, motions, and the like. I’m not excited about magical robot lawyers. But what I am excited about is saying, look, we’re tracking this litigation that you’re in, we know it’s a employment law, like kind of wage hour class action, let’s say. They typically have 39 steps, you’re on step six, you know, and when your opposing party files the interrogatory, in step seven, we know from history, you’ve got 21 days to file your objections to the senator rogatory, so step eight. That’s what happens in just about every case. And we sort of know what they look like, you know, we sort of know what the objections typically are. And for a case like yours, we can give you a template. You know, we can tell you don’t file this document. But here’s an average of the document that typically gets filed in cases like yours. We can take information that we’re able to extract from steps one through seven, maybe, and help you draft step eight. And to do it a little more flawlessly, with the best strategic advantage that you can have. So when I was at a big firm, if I wanted to file a motion or a response, or an answer or something, I never started with a blank sheet of paper, I would always go search in our firm’s document management system or DMS, for something like it. If I’m filing something in the Southern District of New York, let me find a template that’s like what I’m trying to file. I’m not going to file the template, obviously, I’m going to go through, I’m going to change it. I’m going to make it specific to the case that I’m trying. But I would never start with a blank sheet of paper. For most law firms in America, for probably 90% of law firms in America, there is no DMS. You start with a blank sheet of paper, you go to listserv, you know, you ask every lawyer on your listserv, hey, does somebody have an example of this thing that I need to file on step eight. You know, there’s a lot of blank sheets of paper. And so one of the things I’m really excited about is the idea that we can use that kind of big data. And we can use this collection of briefs and pleadings and motions, to template out litigation, to understand what comes next. And not just create the calendar event that says you have this thing due in 21 days. But to say like your opposing party just filed step seven. We’ve been expecting this, now that they filed it, you have a response due in 21 days and this is kind of what it should look like. This is where you start. So Fastcase and Docket Alarm could be the DMS for midsize and small sized law firms everywhere. 

Tom Hagy  

As you’re talking about this, even though I’m not a lawyer, I don’t have a law firm but I do run a business and so having deadlines and knowing I’m almost envisioning as you’re talking, that on my calendars or something that might say, you know, on my calendar, not in my email, that says here’s something you might want to focus on today.

Ed Walters  

Yeah.

Tom Hagy  

Because something just happened or you made a promise, or there’s whatever. It’s like, here’s some things to think about today. Because you may not know, right?

Ed Walters  

Right. 

Tom Hagy  

Because I did, I did say that to a lawyer, I was interviewing a while ago, about about the thing you said earlier? How deadlines really can trip up lawyers. And I said that to him, I said, you know, if I miss a deadline or something, you know, it’s not good, but I don’t have like a client that’s going to lose a case. And he said, Tom, the calendar is your friend. And so, and having a lot of things, you know, that you guys already do, where things get fed into account, I think that’s enormously useful. And when I was in Docket Alarm, I didn’t realize, only only by talking to you did I think maybe that is something they’re pulling. When I go to a docket and I see oh, the hearing, the oral argument is going to be in two months. It was great, because say I’m a journalist covering a case, that’s good for me to put on my calendar, you know, I may want to listen to it, maybe it’s going to be broadcast. Who knows.

Ed Walters  

So this data science and you know, data extraction, artificial intelligence, it’s at the heart of what we’re doing right now, in Fastcase. It is powering our new citator, which is called Cert. It’s going to be the way lawyers know whether cases are still good law. And it’s the heart of Docket Alarm. It’s how law moves from being a faith based initiative to a science. And we’re really excited about it. There’s some very cool stuff happening in Fastcase right now.

Tom Hagy  

Yeah, well, sounds like you guys are doing a lot of cool stuff.  At this point in the podcast, Ed and I were on webcams. And I could see him,  he raised a fist as if to say, right on which I wasn’t sure what he was doing.  And does that mean we have to stop? Are you proud of yourself? I’m not sure.

Ed Walters  

That was, I was signaling to you as a drummer.

Tom Hagy  

Coming up on a stop. Okay. All right. Well, all I wanted to say then was that you know,  because I am talking to reaching out to some of your Fastcase 50 folks, there’s a lot of creative stuff going on in the legal market, not just with law firms, but people who serve them. I’ve got some other folks, some of your winners will be on the podcast. 

Ed Walters  

I’m excited about that. It’s such a great group. 

Tom Hagy  

Yeah, yeah, really good. Well, Ed Walters, thank you very much for talking to me today.

Ed Walters  

Thank you, Tom. Thanks for inviting me. It’s been a lot of fun.

Tom Hagy  

That concludes this episode of the Emerging Litigation Podcast. If you have any questions about anything you heard on the podcast, or would like to participate, please write to me at editor@litigationconferences.com. The Emerging Litigation Podcast is a co production of HB Litigation and Critical Legal Content, my company’s and Fastcase and our friends at Law Street Media, David Nayar, Editor in Chief. This is also the audio companion to the Journal on Emerging Issues in Litigation published by Fastcase, Full Court Press, Tom Hagy, Editor in Chief, Morgan Right, publisher. I’m your host, Tom Hagy. That’s why I’m talking and I don’t know if it needs to be said. But this is not legal advice, unless telling you it’s not legal advice is legal advice. Although I’d argue it’s just plain common sense. Thanks for listening. Give us a rating, share with friends. See you on the next episode.

ED WALTERS is the CEO and co-founder of Fastcase, an online legal research software company based in Washington, D.C. Under Professor Walters’s leadership, Fastcase has grown to one of the world’s largest legal publishers, serving more than 1.1 million subscribers from around the world.

Before founding Fastcase, Professor Walters worked at Covington & Burling, in Washington D.C. and Brussels, where he advised Microsoft, Merck, SmithKline, the Business Software Alliance, the National Football League, and the National Hockey League. His practice focused on corporate advisory work for software companies and sports leagues, and intellectual property litigation.

Professor Walters worked in the White House from 1991-1993, first in the Office of Media Affairs and then in the Office of Presidential Speechwriting. After working in the White House, he was the lead account executive in an influential Washington public relations boutique. He has written for The Washington Post, The New York Times, The University of Chicago Law Review, The Green Bag, and Legal Times, and has spoken extensively on legal publishing around the country.

Professor Walters earned an A.B. in government from Georgetown University and a J.D. from the University of Chicago. He served as the Editor-in-Chief and Chairman of the Board of Directors of The Hoya, Georgetown University’s college newspaper, and during law school, he served as an editor of The University of Chicago Law Review. From 1996-97, he served as a judicial clerk with the Hon. Emilio M. Garza on the U.S. Court of Appeals for the Fifth Circuit. He is a member of the Virginia State Bar and the District of Columbia Bar, and he has been admitted to practice in the U.S. Supreme Court and the U.S. Courts of Appeals for the Fourth Circuit and Fifth Circuits. He serves on the boards of Pro Bono Net, Public.Resource.org, Lexum, and Friends of Telecom Without Borders. He serves on the Leaders Council of the Legal Services Corporation.

He is the founder and serves on the editorial board of the Journal of Robotics, Artificial Intelligence, and Law (“RAIL”) from Full Court Press. He is the author of Data-Driven Law (Taylor & Francis 2018), and a contributing author of Legal Informatics (Cambridge 2021).