By Jason Wilson
A month ago I had the pleasure of reading over a draft of Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints by Christina Boyd, David Hoffman, et. al. which describes how the authors’ spectral cluster analysis on a dataset of federal complaints has yielded some pretty remarkable insights into how claims are composed. Since then, Hoffman has begun writing a series of posts on Concurring Opinions discussing the research and findings both here and here. Hoffman writes in his latest post:
Here, I’d just say that thinking about complaints as defining and advancing clusters of causes of action made me actually reconsider what public adjudication processes were actually doing. I used to think that litigation was performing a winnowing function on plaintiffs, with “more important” cases, or those where the truth was murkier, reaching the
deadklieg-lights of trial. But now, my frame is that of litigation as a tournament – not for plaintiffs, but for causes of action. Each case begins with a cloud of possible legal theories competing for attorney and judicial attention. Some survive (by chance or by law or by facts) later into cases, and they turn up in judicial opinions, which are then read, acontextually, by students, who in turn believe that there is such a thing as a “contract” case, or a “torts” case. But at least as an original matter, there was no such thing. Why do some causes of action survive longer than others? What does pleading practice tell us about attorney strategy and competence?
It’s going to be really interesting to watch how this develops and what more we can find out when we start comparing different datasets, such as initial complaints versus amended complaints and complaints filed in different years. I’m even wondering if such analysis could actually start telling attorneys the likelihood that certain claims will get past the Rule 12 stage, MSJ, etc.
[Image (CC) Frank Kehren]
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