09.16.14

Publication,

Brace For This Brief’s Impact On The Supreme Court

PRACTICE GROUPS

Last spring, the U.S. Supreme Court granted certiorari in M&G Polymers USA LLC v. Tackett presumably to resolve a circuit split regarding the interpretation of collective bargaining agreements that provide health insurance benefits to retired employees. At the time, few people would have predicted that this case would generate one of the most unique and noteworthy amicus briefs ever filed before the Supreme Court. While it’s noteworthy for several reasons, the brief’s biggest impact might be the least obvious.

Thomas Goldstein of Goldstein & Russell PC and founder of SCOTUSblog.com filed the amicus brief on behalf of his law firm — not a client. The brief does not argue a position, nor does it advocate for a particular party or outcome. Instead, as Goldstein writes, the brief’s “only purpose … is to provide the Court with factual information that may be useful in guiding its decision.” This no-party, no-argument amicus brief is likely the first of its kind before the Supreme Court….

So what’s the big deal? The answer: big data. Big data is about looking to large quantities of raw data, using computer-driven algorithms to analyze the data and displaying results (such as correlations and causations) in a way that can be digested by humans. (For a more thorough discussion of big data and the law, see my previous Law 360 article on the topic.) The era of big data is coming to the legal industry, and in some areas of the law, has already arrived. Just like other industries such as banking, health care, and retail, the legal industry will have the opportunity to harness the power of big data too — that opportunity may even become a necessity….

While Goldstein’s brief is not big data, it demonstrates the power and possibilities of a datacentric argument, and can be used by practitioners as a model of how to present big data analysis. Goldstein shows how a datacentric approach can add value by contextualizing a contract interpretation issue. Goldstein doesn’t just present the raw statistics; he “shows his work.” He explains his methodology and sources and he even presents the raw data in an accompanying spreadsheet. In many ways, this presentation mirrors that of a scientific paper. Goldstein’s approach reflects how lawyers present case law. When discussing a case, a lawyer provides context — through discussion and citation, such as what court decided the issue, when it was decided, the facts of the case, etc. — to give credibility to the argument. Goldstein’s approach provides similar information for the same purpose: to give authority to the data.


Published by Law360 – Portfolio Media, Inc., September 16, 2014

For more information, contact James Wendell.

Read entire article (PDF).