CHICAGO — Attorney Kirk Jenkins has developed a specialty in the fast-growing field of legal analytics, advising clients of his firm about their chances of winning at the appellate level.
Jenkins has spent many years of his legal career in Illinois, but he has a great interest in California's legal system, having practiced in San Francisco for 10 years.
Chair of the Appellate Task Force at the law firm of Sedgwick since 2014, Jenkins leads the legal-analytics group of eight attorneys in four offices.
“Our attorneys often work with trial teams, managing the client’s appellate strategy, protecting the record, briefing and arguing critical motions and positioning the client’s presentation to maximum advantage in what is often a fast-changing legal landscape,” he told the Northern California Record.
Jenkins has many examples of how analytics affect conventional wisdom.
“You hear a lot of people say, well, you can’t really tell much from oral argument about what’s going to happen,” he said. “Both the academic research that preceded us and our research have demonstrated you can predict the ultimate result with a fairly high probability level based on closely observing the oral argument. We proved that the party receiving the most questions is overwhelmingly likely to lose. The margin gets bigger and bigger between the number of questions you get and your opponent.”
Jenkins said legal analytics is a growing field.
“It’s really ultimately about teaching lawyers the risks in litigation in the way that a business person thinks about it,” he said. “The legal profession is kind of a latecomer to this approach.”
The academic world, Jenkins said, has been doing analytics for 50-60 years.
“There’s enormous amounts of academic literature out there about applying analytics to the initial decision making. It didn’t really penetrate into the bar, I would say, until 2013,” he said.
Illinois and California are where his firm does a lot of appellate work.
“The goal in both these courts is to better understand how each of these courts makes decisions so as to be in a better position to predict what they’re going to do going forward and to see insights about how better to persuade the court, to understand their voting patterns, to understand who the most likely targets for persuasion are and to better understand how to win cases,” he said.
Oddly enough, if Jenkins does his job right, he eliminates appellate work for himself.
“The best position is to get the case in a position where the opponent never brings the appeal to begin with,” he said.
Jenkins spent 1994 to 2004 in Sedgwick's San Francisco office, and still has close ties to the area.
“The majority of my practice, from one day to the next, is in California and the western states, so it’s more of a focus than Illinois is, most days,” he said.
There are many differences between appellate practice in California and Illinois, as he has noted in writings about, and analysis of, trends.
For example, Jenkins said the Illinois Supreme Court accepts relatively few amicus briefs, whereas California's high court has a different approach.
“The California Supreme Court accepts large numbers of amicus briefs. They average three to four each and every day, and in that sense they are similar to the U.S. Supreme Court,” he said. “The caseload in California is more tuned towards administrative type deals. They write more opinions than Illinois does. They write more concurring than dissenting opinions in California than there are in Illinois. Opinions are significantly longer in California — they can be as much as double the length.”
Illinois works more slowly, too, he said. The Illinois Supreme Court doesn’t have time limits on how quickly it assigns moral argument or how quickly it decides a case after oral argument. In California, the court is required to hand down a decision — with a rare exception — within 90 days of hearing oral argument.
“Before the case is ever argued, both the California Supreme Court and court of appeals are a long way down the road towards deciding it, because the clock is so short. Largely, because of the death-penalty docket, California is slower across the board,” he said.