Solicitors and barristers in Ireland are increasingly likely to use tools which analyse the performance of judges in a bid to assess and improve their chances of winning court cases, according to a new legal research paper.
The study warned such a trend was likely to have consequences for the perception of judicial impartiality, as such technology allows legal firms to better predict the outcome of cases before particular judges.
In a paper in the latest edition of the Irish Judicial Studies Journal, Dr Brian Barry writes that these analytical tools have had “a growing and transformative effect” on litigation practice in other jurisdictions where they have been used.
Dr Barry, a law lecturer at Technological University Dublin (TUD), said they were used to assist lawyers to make all-important calls for their clients on whether to settle or to proceed to trial, and what arguments to use if they did go to trial.
“These tools promise to relieve lawyers from having to rely on intuition, experience or anecdotal evidence and rather base their litigation strategy on statistical insights into judicial behaviour, derived from highly sophisticated mining and aggregation of past data from the courts,” said Dr Barry.
He said at least one international law firm with a presence in Ireland, Pinsent Masons, was already using predictive tools to identify trends and patterns in judicial decision-making, while some start-up firms engaged in judicial analytics were also developing a presence.
Dr Barry noted predictions that there would be “a cascade effect” in the use of analytical tools, once the larger legal firms started using them.
“If experiences in other jurisdictions are anything to go by, it seems inevitable that the Irish legal profession will not be oblivious to market forces — and Irish solicitors and barristers will probably employ these tools more and more, in a bid to be more categoric and certain in their advice to clients,” said Dr Barry.
He claimed such a trend would have consequences for the Irish judiciary and how judicial impartiality was viewed, as the propensities and predilections of judges to decide certain types of cases in certain ways would be readily available and open to scrutiny.
Dr Barry warned some analytical tools may be unreliable, poorly developed or unable to capture nuances in individual cases, while lawyers could also use them improperly or “crudely rely on the results all too readily”.
Nevertheless, the TUD academic predicted they would become “unavoidably attractive” to legal practitioners looking to gain an advantage over their competitors in the Irish legal services market.
Dr Barry noted the French government had introduced a law banning judicial analytics after a study on how different judges issued rulings on applications for asylum and how it highlighted a need for a debate on how much such technology should be regulated.
He predicted litigants could also use statistical information to argue individual judges should step aside from hearing a case because of the perception of objective or apprehended bias.
However, he observed that judges could also benefit from the use of analytical tools to gain insight into their own performance.
Dr Barry said judicial impartiality was a core value and principle of judicial conduct which was “under-explained and under-examined” and only meaningfully considered when an allegation of bias or misconduct had been made against a judge.
However, Dr Barry suggested a more substantive reflection on judicial impartiality was necessary because of new challenges faced by judges.
As well as analytical tools, they include academic research on a multitude of non-legal factors which could affect a judge’s behaviour, performance and decision-making, as well as more extensive and critical media coverage and social media commentary on the performance of judges.
Dr Barry acknowledged that media commentary about judges in the Republic tended to be “more sober and less virulent” than in other jurisdictions.
However, he observed that media coverage of the controversy surrounding the attendance of Supreme Court judge Séamus Woulfe, at an Oireachtas Golf Society dinner during the pandemic had probably caused some damage to the public’s perception of the judiciary’s ability to deal with matters of alleged judicial misconduct.
The paper also noted that researchers have examined the political leanings of judges as well as exploring correlations between a judge’s personal and demographic characteristics and their decision-making.
The law lecturer said the formative years of the new Judicial Council presented an important opportunity for the Irish judiciary “to meaningfully engage with what it means to be an ‘impartial’ judge.”
Dr Barry argued the Judicial Council should take a more proactive and multifaceted approach toward promoting and maintaining judicial impartiality, which he claimed was “fundamental to the public’s confidence in a judiciary”.