The proliferation of mobile phone networks has transformed communications in sub-Saharan Africa and has allowed Africans to skip the landline stage of development and jump right to the digital age. Today, cellphones are as common in South Africa and Nigeria as they are in the US.¹ African markets have clearly shown their willingness to adopt technology and adjust how it works to take advantage of the benefits it offers.

Across many industries, big data is being used to drive more informed and better decision-making. But despite the willingness to adopt new technologies, Africa has been slow to tap into its benefits. For consumers, data is already all-encompassing. Ordinary people are accustomed to and welcome the convenience that insights derived from data bring to their lives, for example:

• When driving, real-time data about traffic congestion is sent to mobile applications such as Google Maps or Waze. This enables drivers to make better decisions about how to get to their destinations faster.
• When consumers use their computers or mobile devices, algorithms use information about them and about people like them, and present to users choices that match what the algorithms think they want to see. Music streaming platforms use this strategy to help users discover new music they’re likely to enjoy.
• When people walk around the cities they live in, it is common for data-driven predictions about crime to inform the level of police protection available in that area.

For law firms, which generally hold large amounts of data spanning several years (e.g. executed contracts, court orders, due diligence reports, as well as the behind the scenes deliberations, drafts, legal research, disclosure documents and matter management),² there is a huge opportunity. Law and big data are the perfect match when it comes to automation and analytics.³

Big data and litigation

Data has always been part of practicing law, and lawyers have always been required to make predictions about the future when advising clients. Historically, these decisions depended on the expertise and experience of lawyers who have practiced and gained knowledge over years; often they rely on their personal experience and judgment.

Any litigator will confirm that the foundation of a case is the litigation strategy. This strategy continually evolves throughout the life-cycle of the case and at several points lawyers – be they in-house or external – must make decisions such as where the case should be filed; how an application is to be responded to; and if settlement should be sought.

In making these decisions, few data source alternatives exist to the traditional research methods and current databases like AfricanLII,⁴ Westlaw and Lexis. However, there is an opportunity for systems to be developed to provide insights on case arguments and litigation strategy. This opportunity is being taken across the world and there is a revolution underway in how litigators decide critical questions of strategy and tactics.

The legal profession is entering a data-driven chapter, empowering lawyers to quantify the prospects of success or the scope of risk for almost every option during a case. The analytics powered by big data take massive volumes of data and strip out irrelevant or redundant information, making it readily searchable. These are tasks that would otherwise take weeks, months or even longer to complete. A lawyer who embraces data-driven thinking can surpass competitors who do not.

For law firms, data and technology can be used to answer questions like:

Should we litigate this matter or settle it?

By assessing outcomes from previous cases; amount of judgments or settlements; and the overall costs of similar matters, data analysis can give a lawyer or a legal team an objective answer to this question based on facts and historical data.

Will we win?

History tends to repeat itself, so looking at the success rates of similar legal questions before the same judge, or in the same types of matters, is a common way to approach this question.

Litigation analytics can result in a more focused and targeted research process and more informed strategic choices. For example, when considering whether an application will be dismissed in a case before a particular judge, in addition to searching for the judge’s decisions on the issue, litigation analytics can pull up information about how a judge has dealt with similar issues in the past. It may not be the exact same issue, but it can efficiently narrow the search. Lawyers will have more information to predict the likely outcome of their intended course of action. In Africa, where several countries have their roots in similar legal systems, litigation analytics can allow litigators to draw from decisions from across the continent.

Artificial intelligence (AI) in litigation can go further toward a future with predictive capabilities. AI can show trends over the last three, five or ten years, and eventually draw a dotted line forward to show where that trend line goes.

Litigation analytics can also provide a sense of a judge’s experience in a case. The answer can inform the nuances of a high-stakes litigation strategy. For example, if arguing in front of a relatively inexperienced judge, a litigator must determine how much education is needed during the litigation. Equally, if the judge is more experienced, the lawyer might need to get more up-to-speed, because the judge will have more familiarity with a particular domain.

What are the expected fees?

As alternative billing arrangements become more commonplace in the legal services industry, firms must have comparable data sets about client fees. By looking at matter management and billing data, a firm can know the costs of similar cases and provide an informed fixed-fee proposal.

Can the matter be pursued more efficiently?

Lawyers will be aware of the evolving expectations from clients. Law firms can provide better services by looking at matter or billing data to identify process bottlenecks or tasks that could be performed better or more quickly by other types of professionals. Making this process known to clients could strengthen the client relationship.

Challenges in Africa

Many lawyers use Information and Communications Technology (ICT) for both professional and recreational interactions. They have the skills needed to use common applications, and they appear to take up new applications and increase their skills and confidence with ease. Across the continent many courts and tribunals have introduced e-filling rules, and during the COVID-19 pandemic several courts easily moved their proceedings online.

Despite the willingness to adopt new technology and the promise of significant benefits from adopting big data and AI, lawyers in Africa have been slow on the uptake. It appears that part of this sluggishness is on account of endemic ICT challenges across Africa. While some states such as South Africa, Egypt, Tunisia and Nigeria have demonstrable results to show for their investments in their ICT infrastructure, and occupy the highest rankings on the Network Readiness Index (NRI), such success is not shared by most of the continent’s states.

Economic and technological constraints remain prevalent and ICT implementation is still in its infancy in most states. Thus, it can be argued that the many African countries are still struggling to build their ICT infrastructure and bridge the digital divide.⁵

Another challenge African states face is the lack of laws and regulation addressing online activity, such as cybersecurity, data protection, confidentiality, and the protection of online users. The importance of having an adequate socio-legal and regulatory framework was noted by UNCTAD, which stated the following: “The need for an appropriate legal framework is supportive of and conducive to the practice of e-commerce and has been identified as a prerequisite for the growth of e-commerce in general and ODR in particular.”⁶

Compared to practices in developed countries, many of the business norms in the developing world (particularly Africa) are driven by government intervention through means such as statutory instruments as opposed to market forces. This means that unless governments encourage investment and create the economic conditions that would make the pursuit of this goal tenable, there is not much the private sector can do on its own to instigate change.

By Rodwyn Peterson (Head of Litigation) and Mukudi Nkanza (Trainee Solicitor), Chibesakunda & Company