LXBN Leaders: The Illinois Supreme Court Review Gives Appellate Lawyers a New Set of Tools
The Illinois Supreme Court Review launched about a month ago with one goal in mind: use data analysis to evolve the toolbox available to appellate lawyers.
As Sedgwick partner and blog editor Kirk Jenkins notes, appellate lawyers—unlike trial lawyers, who argue to one judge or a jury—find themselves arguing their case to a group of judges who usually have a history together. And the writers of the Illinois Supreme Court Review think that there’s plenty for appellate lawyers to learn from data analytics.
“For at least 40 years, academics have had a variety of tools for understanding group decision making. Business has been using data analytics for years. But these tools are relatively little known in appellate law, so we are exploring and adapting those tools to the task of understanding appellate decision making business. There’s no reason these same tools can’t be adapted to what we’re doing as appellate lawyers,” said Jenkins.
The result is something between a law review and a blawg—closer to the data analysis of FiveThirtyEight than a typical news analysis story, like Sedgwick’s first blog, The Appellate Strategist. While that blog still serves to report on the day-to-day of appellate issues, the Illinois Supreme Court Review will focus on the numbers-driven view of what’s going on in the courts—complete with footnotes and some math.
“Things like data analytics and game theory are going to become an increasingly everyday part of the way people talk about appellate law,” said Jenkins. “If we can [make the case] that there are powerful tools to deploy in what we do to better understand appellate decision making, to have a better sense of what kinds of cases really should be brought to appellate court, or how the appellate court can react to a certain kind of issue or case, that’s all too good.”
In some ways it’s an old-school approach: Jenkins says the team behind the blog wants to maintain the academic tone one might read in a law review, to match the more rigorous analysis and rigor compared to The Appellate Strategist. But their platform is far more flexible, publishing data analysis over the course of 4-6 months what would ordinarily be gathered in one law review article, parceling it out subject by subject.
To Jenkins it’s a natural extension of The Appellate Strategist, which almost never delved into the 15 year context for decisions it was reporting on. And as it turns out, a lot of the data analysis they’re doing is drawing on conventional wisdom from “years and years” within the appellate community.
“You hear from experience [from other lawyers,] ‘these two justices tend to vote together;’ or ‘this court like case, not this kind of case.’ So one of the fundamental tasks as we set out occurred to us that all of these subject of conventional wisdom cannot only be measured, but measured rigorously,” said Jenkins. “One of the real pleasures of this projects is to test all these things we thought we knew and to find out to what degree they’re true from the data assembled.”
Though Jenkins says there’s still an appreciation and, to some degree, emulation of law review style, blogging offers them a new shift that law reviews can’t get.
“We decided to go in this direction because we agree that inevitably the function of law reviews is going to shift onto blogs; they get the ideas and approach out there in a way that wasn’t possible if this stuff was published in a law review,” said Jenkins. “So much is based on the ability to share and develop ideas, and law reviews are not particularly developed to do that.”
Right now the Illinois Supreme Court Review posts a regular two posts per week. They’re smaller than a law review article would be; more focused. Which Jenkins thinks works to its advantage.
“One of the things I think today has fueled the decline of law revews is that the articles are so long, rigorous, and math heavy. It’s one thing to address two pages of analysis, it’s entirely another thing to be facing 85 pages of it,” said Jenkins. He believes that the narrower focus gives the blog and the issues it focuses on time to evolve.
“It makes it a more approachable product, hopefully, when you take it one small step at a time and look closely at one subject at a time as opposed to publishing a gigantic, dense product all at once.”
Of course, the blog is still very much in its infancy. But Jenkins said that the feedback so far has been very encouraging, given the cases pending at the court right now.
“We’ve gotten a lot of inquiries from people specifically directed at the pension cases. [So] it’s a great time to be writing these analyses of court that bring insights and historical data that hasn’t been available before,” said Jenkins, who thinks that while there’s no comparable blogs in the country at this point in time that dearth won’t last forever.
“Using these kinds of tools, there’s simply no downside to it, to put a more rigorous basis of understanding how these decisions get made…I believe in ten years in time data libraries similar to what we’ve developed are going to exist in a number of states”
ThFor now, Jenkins and the Illinois Supreme Court Review team illustrate the usefulness of data analysis one blog post at a time. Jenkins knows it works, and he’s just glad to have an outlet to flex his writing and economic roots.