The Value of Moving from Intuition-Based Decisions to Evidence-Based Planning in High-Stakes Litigation

I spoke with Adam Masarek, a lawyer, epidemiologist, and the Legal Marketing Manager for Lex Machina®, the LexisNexis® Legal Analytics® platform. We discussed how complex, high-stakes disputes are evolving, what the Trade Secret Litigation Report reveals about trade secret litigation, and the value of moving from intuition-based decisions to evidence-based planning in high-stakes cases.

Episode Transcript

(00:01):
Welcome to Reinventing Professionals,a podcast hosted by industry analyst
Ari Kaplan, which shares ideas,guidance, and perspectives from market
leaders shaping the next generationof legal and professional services
This is Ari Kaplan and I'm speakingtoday with Adam Marick, a lawyer

(00:22):
epidemiologist, and the legalmarketing manager for Lex Machina, the
LexiNexis legal Analytics platform.
Hi Adam, how are you?
I am doing great,
I'm doing really well lookingforward to this conversation.
So tell us about your backgroundand your role at Lex Machina.
I've been a lawyer licensedin Georgia for 16 years.

(00:45):
As you mentioned, an interestingfact about me is that I'm also an
epidemiologist by training, I was a mathmajor in college, so I'm really lucky
that I get to combine my backgrounds in myrole as the leader for content marketing
and thought leadership for Lex Machina,which is the Lexi Nexus legal analytics
platform, something like Freakonomicsor Moneyball for civil litigation.

(01:08):
If you think about a patient who goesto their doctor and gets a diagnosis
that they weren't really expecting,what's the first thing that person
is probably gonna ask their doctor?
Is it Doc?
Can you tell me?
The neat phrases in old Latin thatyou learned in graduate school
that might describe this situation.
Probably not.

(01:28):
They're gonna want to know the prognosis.
What does this mean in the end?
How long is it gonnatake till I get better?
What's this gonna cost me?
Should I go with this specialist?
With that one?
are much the same way when it comesto their lawyers and legal problems
but it's an area in which legalprofessionals have historical struggled
and not just like a little bit.

(01:50):
So that's where Lex Machina comes in.
We're a software as a service thathas a sizable internal team of legal
professionals, data scientists andsoftware engineers, and we work together
to collect and maintain a huge dynamiccollection of not just data and graphs
for lawsuits throughout federal courtsand a growing variety of hundreds of state

(02:11):
courts, but also collecting the underlyingdockets and documents themselves.
So that we can give our customerscomplete information about what actually
happened at the end of the day inmillions of lawsuits, for any case that
might interest you or an adjuster oranother professional, you can quickly
and easily tell who won how much moneythey won by what procedural means, under

(02:36):
what findings of fact, how long it took.
federal court cases, whether itsurvived appeal and more, plus the
kind of experience metrics you mightfind like on the back of a sports
card, but as they pertain to each ofthe attorneys, law firms, companies,
and judges involved in each case.

(02:57):
So for legal professionals, thisallows them to make data informed
recommendations for their cases andclients for which venue to select.
To, for which motion argumentsto emphasize or whether to
file a certain motion at all.
How to negotiate smart settlements andform the right trial tactics, but also

(03:19):
for business development analytics.
Allow a private office to showcase theirown history of success and for companies
and their general counsel legal analyticsfrom Lex Machina, help them assess
liability risk and pick the right outside.
Litigation counsel.
With confidence and precision

(03:40):
.What major shifts are you seeing in how litigation's evolving, particularly
in complex high stakes disputes?
The short answer is that there'smore complex litigation, both in
terms of the raw number of filingsand also the stakes tending to
be higher in each of those cases.
Civil defense lawyers andproperty and casualty insurance

(04:01):
carriers have complained about.
A perpetually ongoing lawsuitcrisis since literally the 1830s.
That said this decade especiallysince COVID-19 pandemic business
closures have reopened, there'sbeen more data and literature out
there surfacing that have lent morelegitimacy to the notion that damage

(04:25):
awards have gotten higher, like beyondinflation, especially jury verdicts.
When you compare total value ofjury verdicts and average values.
They're rising beyond inflationaryrates as well as compared to rates
for judge order damages for federalcivil litigation in the United States.
There was an annual record setin 2023 for total damage awards

(04:49):
as well as average damage awards.
Per case, and then that recordwas broken again in 2024 and 2025.
It's not just averages in totals,it's the median damage award too.
The median damage award in federal courtsfor the 2021 through 2025 period was
about 20% higher than the median damageaward for the proceeding five year period.

(05:16):
In most businesses and litigationsthe same way, success tends to beget
success as more plaintiffs are comingaway from their lawsuits compensated.
They're establishing these models fordamages in similar cases thereafter.
so as you would expect withincentives, we're seeing an increase.
We've seen a big yearover year jumps many.

(05:38):
But not all categories ofcomplex civil litigation.
for particular examples, as wereported in this Trade Secrets report,
claims for misappropriation of tradesecrets are up as are failure to
provide reasonable accommodationsfor persons with disabilities.
Those lawsuits are up disputes related tocommercial liability insurance policies.

(06:01):
Infringement of pharmaceuticaland computer patents, federal
Tort Claims Act cases, and othersare all going up in recent years.
There's a couple proposed reasonsfor this that kind of get brought up.
one is the rise of thelitigation funding industry.

(06:23):
there are companies that will financethe way for plaintiffs to pay expert
costs and other costs associatedwith their lawsuits, so that cases
that previously weren't making it totrial are increasingly now doing so.
There's more and moreattorney advertising.
It's not just billboards and moreof them taken up with lawyer space.

(06:45):
Lawyers are also advertisingon your phone, on TikTok,
on Instagram and whatnot.
And so this is just more exposure forother potential future plaintiffs to
c rewards or awards they could obtain.
then people think there's alsobeen a little bit of a change.
In terms of strategy for theplaintiff's bar, this idea of the

(07:06):
reptile theory that's gotten reallybig in plaintiff's personal injury
cases, especially in the last 15 years.
That is emphasizing less, more theplaintiff's injuries and more the
defendant's quote unquote reprehensibleconduct and making an example out of them.
But.

(07:26):
is complex.
Litigation is up, and we're notreally seeing reasons to think that
trend is abating in the near term.
To Lex Muck in his most recenttrade secret litigation report,
what's making trade secret disputessuch a central issue right now?
As in trade secret disputes and a fewother varieties of complex litigation,

(07:48):
general macroeconomic conditionsare a big part of it in terms of
inflation and shifting labor markets.
Inflationary pressures have.
Coincided with lawsuits thatassert claims for more money.
And when the amount in controversy forclaims goes up, they're more likely to

(08:09):
reach litigation and more likely to reachfederal courts where, Jurisdiction over
certain state law claims more or lessrequires there be diversity of citizenship
between the parties and more than75,000 to be the amount in controversy.
Then there's the shifting labor markets.

(08:31):
The typical story of a trade secretmisappropriation case nowadays is one
of a departing employee who takes theinformation or things with them that
they perhaps weren't supposed to.
Those situations generally don't happen.
And staple happy employmentrelationships they happen when
people get laid off or a worker feelsuncomfortable with their current

(08:55):
position and needs to move elsewhere.
2025 was an especially bad year that.
In terms of shifts in labormarkets, in technology and service
sectors throughout the country.
Last year we saw big year overyear jumps in consumer collection
lawsuits and employment disputes infederal courts and most state courts.

(09:18):
Besides economic factors,there's also technological ones.
is a big part of this story asit is in many circumstances.
These days, AI has made it easier forcompanies to monitor for and pinpoint
their breaches of trade secrets thatoccur, also they make companies more

(09:38):
sensitive to their secrets getting out.
Imagine for example, ifCoca-Cola's secret formula.
Ended up in a chat GPT query and waspart of a public LLM, would really
be no protection for Coca-Colain that circumstance as it is a
trade secret that they may haveperhaps failed to, properly secure.

(10:00):
the sort of thing that keeps a lot ofcompany executives up at night nowadays.
And then as mentioned earlier, successtends to beget success in litigation.
see several heavy repeat plaintiffs.
In federal trade secret lawsuits.
And so as those companies have developedexperience and models for outcomes

(10:25):
in terms of private enforcement fortrade secret thefts, they're more
willing and able to do it again
in similar circumstances later.
How Flexima, help lawyersmove from intuition based
decisions to evidence-basedplanning in high stakes cases.
Lex Machina makes it easy lawyers toimplement strategies that are supported

(10:49):
by data for litigation and businessdevelopment, but we're careful not
to purport to predict the future aninfinite amount of variables involved
in each and every lawsuit, and eachof the judges, lawyers, parties,
and witness involved will eachtheoretically have their own free will,

(11:09):
but analytics are frequently just.
What the doctor ordered.
Those times you reach a forkin the road in a lawsuit.
If you're on the plaintiff's side,you might ask, does it make more
sense for us to file in allowablecourt number one, or allowable court
number two, or if we're on the defenseside, does it make sense to remove or
transfer essentially this state courtlawsuit to federal court for allowed?

(11:33):
I, for several years worked as aninsurance defense and coverage attorney in
the Atlanta area and the standard advice.
That we tended to offer clients wasthat they wanna remove their state court
lawsuits to federal courts the reason,as most lawyers are taught in their
first year in law school as a fairnessmechanism and to reduce the chances

(11:53):
for home cooking, as they called it.
When I. Went to school down south.
But as that true, the answer is itdepends like most other legal questions,
and the good news is for the depends.
You don't have to be a mathmajor to figure it out or
hire a third party consultant.
You can just simply look upthe numbers between these two
jurisdictions and compare theiroutcomes in terms of case timing and

(12:16):
trial resolutions or motion metrics.
So in my circumstance, when I was a lawyerin Atlanta, everyone assumed that the
federal court judges were more likelyto grant a defense motion for summary
judgment or a motion for judgment onthe pleadings with the thinking that
these federal court judges don't wantthis state court r raff in their court.

(12:41):
you can just look at the numbersand see that's not the case.
It's the same in otherareas too, in other areas.
It's not, it justdepends on the situation.
You don't have to just rely on gutfeel for that sort of thing anymore.
How do you see litigationAnalytics evolving?
I see litigation evolving into includemore cases, so that includes more state

(13:07):
coverage, and also that becomes more of anintricate part of large language models.
those based in legal researchengines like Lexus Plus with protege.
remember in God we trustall of this, bring data.
We also expect analytics to evolvein terms of increasing in adoption.

(13:31):
main goal, I think for mostcivil litigation attorneys
and insurance representatives.
This year should simply be totrain that issue spotting light
bulb in your head to light up.
Those times that data can add valueto a dispute resolution process.
Sometimes that's really obvious.
Someone might explicitly ask a numbersbased question, like, how long will it

(13:54):
take the judge to rule on our motion?
Or how likely is adefense verdict at trial?
But other times it's more implicit.
Think about those, pardonthe interruption emails.
That you might get at your office oron your professional, group lift serve.
be something like PTI can anyonewith experience before Judge

(14:14):
Smith, tell me about them.
Do they suggest the pro plaintiffproclivity, are they willing
to grant this type of motion?
I sent those kind of emails out whenI was practicing, I would typically
get one or two responses from like a.Semi-retired lawyer who would tell me a
mildly funny anecdote regarding them andthe judge of interest from some time ago.

(14:36):
And that's not irrelevant.
It's not unhelpful, butit's not data, right?
And with analytics, you havedata to inform decision making.
It compliments that anecdote, ifyou will, which is just based on
personal experience and whateveryou hear through the grapevine.
This.
Kaplan speaking with Adam Marick, alawyer epidemiologist, and the legal

(14:58):
marketing manager for Lex Machina, theLexiNexis legal analytics platform.
Adam, thanks so much.
Thank you.
Have a great day.
Thank you for listening to theReinventing Professionals podcast.
Visit reinventingprofessionals.com orarikaplanadvisors.com to learn more