2013-The Rise of "Big Data", and the Triumph of Effectiveness over Efficiency

By: Dan Costello

It was a balmy 80 degrees, the skies were blue, the air was dry, and the discussions were energized. Although the location was at a resort, I was not on vacation. I was at the CLM Annual Conference where most of the blue sky talk was on business strategy, and the energy came from some of the top executives and attorneys in the corporate, insurance, and legal communities. As I listened to some of the top thought leaders in the country, I was constantly struck with the commonality in their comments. The same thought kept popping into my head . . . "Are we ready for the next big leap?" According to IBM Consulting, over 90% of the world's data has been created in just the last two years. Known as "Big Data" every mouse click, tweet, post, invoice, and settlement for companies is being recorded. What does a company do with all that data? More importantly what value does it provide the business and its partners? These are questions that face large and small organizations alike and ones currently challenging the same thought leaders. In an act of hubris creating a solution to solve these problems, I think that successful organizations will tackle the "value" question only by:

Collaboration

Although its not the first time I have blogged about this, in the era of big data information sharing is paramount. With so much data, more information sharing would seem counter-productive. But, sharing partner specific data is essential. Sharing has been done successfully in corporations, but little has been done on whole to share this externally with litigation partners. In fact, the few leading companies sharing this with their business partners are the minority. Information sharing is not a one way street, as law firm partners should help to "crowd source" or "partner source" difficult information to capture, and provide it back to their clients to help add value. Data on KPIs such as total case outcome, which is reliable, and consistent helps to triangulate and identify problems. This also helps to significantly increase the brain power to collect, analyze and distribute data.

Visibility

What good is the data if its buried in a warehouse? When a coach is deciding which player to put in at the end of the game, he relies on data. He knows who has the best average, most goals, and best shooting percentage. But guess what, the player also knows his/her stats. All the data in the world is not helpful unless its put in context. If reducing cycle time is beneficial to you and your bottom line, let your partners know of your benchmarks, and where they fall on the spectrum. Is a 30% average good or bad? Well it depends if we are talking about a batting average in baseball, or save percentage in soccer.

Reward

Value is created when reward meets opportunity. Only by creating incentives to reach a common goal does value happen. Data lets us know how close we are to success, and drives us forward to get there. By the use of real time dashboards, managers and partners can highlight success, steer business to those at the top of the pyramid, and find more ways to incorporate top performers into their organizations. After all leaders are looking for effective problem solvers, not just those who are efficient on throwing things over the wall. Thomas Edison wisely stated "many of life's failures are people who did not realize how close they were to success when they gave up." Only by collaborating with visible benchmarks will partners truly succeed and conquer big data.

Guide to Utilizing Social Media Websites in Investigating Claims

By: Daniel P. Costello, Esq. & Jessica Biagi, Esq.

Why use social media websites to investigate claims? You would not believe what people are putting on the internet these days! A recently widowed husband claiming loss of consortium posts a picture of himself at a beach with barely dressed women wrapped around his waist. A claimant who broke his ankle tweets that he has fully recovered and cannot wait to run another marathon. A plaintiff's witness posts the day after the alleged incident that she is severely hungover and does not remember much about what happened the night before.

Social media can provide invaluable information when evaluating a claim, preparing a defense, or preparing for trial. For example, defense counsel can use a Facebook photograph or Twitter post you found on a social media website to rebut a claim for damages or impeach a plaintiff's credibility at trial. Nevertheless, in using social media to investigate claims, you need to be careful to avoid crossing the line and putting your defense counsel in an awkward ethical position.

How to keep things ethical

If the information is public, it is fair game. However, if a person's profile is set to private, certain ethical problems can arise. Attorneys are not allowed to use deceptive investigatory tactics or engage in prohibited communications, whether through their acts or the acts of another. This means that if you create a false profile or friend a represented claimant, the attorney can get in trouble and the information itself can be thrown out. While several jurisdictions allow attorneys to friend unrepresented individuals under certain circumstances, the safe bet is to alert defense counsel to the profile and allow them to make a formal discovery request.

How to make it count

Once you find the “smoking gun,” what do you do with it? To make it count, you need to properly collect the social media-based evidence so that defense counsel can circumstantially lay the foundation at trial. Make sure to preserve enough information about the website to establish that it belongs to the subject claimant/witness. Record the site's URL, how you found it, the date and time you viewed it, and any other identifying details (ie, username, stated location, communications with other witnesses). Using the “snipping tool” on your computer, take various snapshots of both the post and the profile in general. A judge will consider all the particular details in combination.

How to avoid surprises on this end

What goes around, comes around. Make sure to look up your clients and alert defense counsel to any potential issues with their social media websites. If no formal discovery request has been made in the case, it may be permissible to remove the adverse content.

What a Way to End a Year, 2012 Ends in a Bang

As another year draws to a close the internet is a buzz with stories of the top ten movies of the year, this year's best gifts, and the stories of the year. We have been doing quite a bit of reflecting here again, and we wanted to share some of the highlights of 2012 with our friends and clients.

Although typical lists try and recap the entire year, we won't try and do so here. It just happened in December but we would be remiss if we didn't start with an excellent trial result. On December 10, 2012 a Cook County jury found in favor of our client, a national retailer, in a high stakes jury trial. The plaintiff asked the jury for $9.5 million dollars where he had nearly $1 million in paid past medical bills, $2.1 million in wage loss and a claimed $6 million in non-economic damages. The plaintiff would not move off a $5.4 million pre-trial demand, and turned down a joint defense offer of $2 million dollars, with indications for additional settlement. The jury found for our client, and assessed 0% liability. This was a major victory as joint and several liability in Illinois would require payment of medical for any verdict including 1% on liability. The trial team of Dan Costello, James Barrow, and Jessica Biagi tried the case for nearly two weeks, ending in a verdict followed by the Illinois Trial Lawyer's association. In addition to success in the Courtroom the firm has spent a great deal of time developing and studying industry best practice.

In September 2012, Dan Costello presented on the Ethics of Alternative fees to global risk managers and insurance executives in Philadelphia. He presented on a panel with former Associate General Counsel for Harleysville Insurance, along with the former Chief Legal Counsel for the Pennsylvania Department of Insurance. Shortly after presenting, Dan was part of the second Litigation Management Institute at Columbia Law School in October 2012. The intensive program provided by CLM is a one of kind program putting experienced litigation attorneys, risk management officers, and corporate leaders through rigorous course work for three days. Leaders from Google, Marriott, Liberty Mutual, and other Fortune 100 companies guided the attendees through best practice in litigation management and service to clients. Dan is one of 170 people in the U.S. to have completed the course, and he earned the CLMP designation.

Finally, the firm prides itself on the work that it is doing with two national insurance carriers in regards to litigation management. 2012 saw the firm work successfully with two major U.S. based carriers to create counsel scorecards, litigation management best practices, and unique solutions. These solutions will create value long into 2013 and into the future. Although a successful 2012 is over, there are many exciting events planned for next year, and we look forward to celebrating them with our friends and clients.

Daniel P. Costello specializes in construction litigation, complex litigation, and litigation management.