Hi. I’m Steve Holt and welcome to the Investigations podcast.
In this episode of the podcast, we take a slightly different approach to the previous ones in that we speak about the value of intelligence and information in arriving at important strategic decisions. To that end, I’m joined by a barrister and the co-founder of a litigation analytics company, Solomonic, Gideon Cohen.
Thank you for joining me, Gideon. I hope you are well.
I am, Steve. Thanks very much for having me.
A pleasure. An absolute pleasure, and sorry it’s taken so long to organise, but I understand that you have a very interesting story and given your dual interests as the co-founder of Solomonic and very senior barrister, I am interested to learn a bit more about you, your background and how you’ve got to where you are, really.
Yeah, sure. I am happy to talk about it.
I’m not sure I can lay claim to "very senior", but I’m grateful nonetheless.
So, I grew up in London - all fairly unextraordinary there - and went to school here. I studied law in a couple of different contexts.
So, actually, first I studied Jewish or Talmudic law, straight after school, for a couple of years. And then, as part of my degree at Cambridge, I did law. And then, I went on to do a bit at Harvard, as well. So, I was gradually ramping up the legal content, I guess, and always with a view to becoming a barrister, which is what I’ve been doing now since, well, fully, I suppose, since 2012.
Did you always want to be a barrister? Or was that something from a very young age that you wanted to be and, therefore, your path was directed towards that? Or did it kind of form as you were going through the interesting part of the studying?
Yeah. I’m not sure. It’s probably hard to pinpoint a precise moment.
I mean, everybody in my family, for a very long time - and I exaggerate only slightly - everybody in my family has been a lawyer.
No barristers, really, in terms of close relatives, but the legal atmosphere was very much always there from a young age, for better or for worse.
I think I’ve always been interested in debate and argument, so that kind of made me gravitate naturally towards the bar, within the legal sphere, and I just find it... I think there are some people who will speak about being a barrister in very eloquent moral terms; in the importance of upholding the rule of law, and so on. And, of course, that’s all right, but I think, for me, I’ve always enjoyed the process of constructing an argument, and testing it, and seeing what works, what doesn’t work, what the other side is saying, how one can counter that.
It has a sort of a pleasure, I find, in just that intellectual activity, so without completely downplaying the wider interests in pursuit of justice, and so on, I would have to say that, for me, that intellectual curiosity is a big part of why I wanted to do it.
So, it sounds as though family dinner time must’ve been quite good fun, if you were up for arguments and discussing things in a very intellectual manner! So, how is being a barrister? What you thought it would be as you were studying?
Yeah. I mean, to the extent that I had a fully formed view. I would say it’s lived up to that.
There certainly is a lot of time spent crafting interesting arguments. There is also a fair bit of time spent doing other things surrounding that, which I’m not sure they would be contrary to what I would’ve envisaged or expected, but perhaps not something I would’ve thought of one way or the other.
You know, the time one might spend reading disclosure or witness statements, or so on, which obviously all feed into that ultimate process of constructing and putting across arguments. But I would say, yeah, it’s broadly as expected.
It certainly throws up some oddities and curiosities in the kinds of cases that I often find myself dealing with, and common, probably with many other barristers who work on high-stakes commercial litigation. But, I would say, in the rounds, it is probably more or less what I had hoped and envisaged it would be.
Fantastic. Now, after maybe... and forgive me if I get the timings wrong on this... after maybe three or four years of being at the bar, you launched Solomonic.
Yeah. Slightly more than that, I think. But, yeah, that’s... it’s, sort of, more like four or five years of full practice after that, but yes.
Four or five years at the bar, you launched Solomonic. How did that come about and, I mean, for the people listening who aren’t aware of what Solomonic is, can you just give us a quick background of what it is and what it does?
Yeah, sure. So, Solomonic is a litigation analytics company.
Now, that’s the sort of general descriptor. Although, for those who aren’t familiar with the field, that may not particularly help them, so I’ll give a little bit more detail as to what that means.
As we understand it, what that means is thinking about data in the context of litigation, from all sorts of different perspectives and all sorts of different ways, so that data could be building a very large data set to predict something like: how long a case is likely to take or how frequently a party settles cases.
It could also be just structuring a litigation data set, so as to enable the user to easily pinpoint all the occasions in the past that a judge or a lawyer was placed in a particular situation and, using it, as it were, as a kind of research tool in that way, so the data can be... if I can put it this way... it can be what people sometimes talk about as Big Data. At least, to an extent, and very algorithmically based and requiring a great deal of data science sophistication, which I don’t pretend to be the one who is able to supply, but we thankfully have people who can do that.
But it also can be, at a much more micro-level, just thinking about litigation data sets as structured data sets: organising them, breaking them down in such a way that people can research them and mind them; perhaps, a different sort of way to the way they might’ve done in the past.
I mean, I find that I’m always interested in things like... it’s not that I’m saying there are things specifically like Solomonic tool... but, in my head, I see it as essentially, this is a tool, which allows you to look at data that existed already, but perhaps hadn’t been organised in a way to get really useful intelligence. Because, if you are a lay client, if you are somebody who is looking to bring a claim, I guess here, one of your questions your board is going to be asking me before they commit the resources necessary is: How much is it going to cost? How long is it going to take? Are we going to win?
Because, they are three really key considerations for management because litigation necessarily drains doesn’t it? It must do for a client because it takes your time, it takes your resources, your energy, and as much as you can try and push that on to your law firm - your barristers and what not - you are the end-user. You are the end beneficiary, so if you have information that says this defendant settles or intelligence, rather, that obviously the facts of the case are very important in each of these, intelligence that suggests that a defendant is quite likely to settle or that a defendant is quite likely to be litigious and want to launch counterclaims, and stay in court for much longer than it takes to [make a] decision. It gives you more intelligence to make a more-reasoned strategic decision.
Is that a fair assessment?
Yeah. I mean, it’s certainly one that we’d agree with, and I think you put your finger on it when you say it’s about making more informed decisions.
Sometimes, when people think about this sort of space, they think in slightly all-or-nothing terms.
You know, either one can build a machine that will do a better job than lawyers of tasks like the one you’ve just been mentioning - predicting outcomes or case length and so on, thinking about how best to approach a particular judge - either one can build a machine that will effectively replace the lawyer, or in that rather clunky phrase that people sometimes us, disintermediate, or there’s nothing to be learned from the data and one just has to go on, as lawyers have always been doing since time immemorial. And, I think, where we come out is very definitely at neither extreme, so our platform is definitely not designed to replace lawyers, but it is designed to give them additional tools to do a better job.
And, I think, the more corporates one speaks to and, I think, one of the pleasures of doing what we’ve been doing in the company, is to get to speak to a lot of corporates about what their pain points are and what their frustrations are with litigation, perhaps, as it has been traditionally practiced. What you hear again and again is that these are the only sorts of, like, really consequential corporate decisions which boards are being asked to take, almost on faith and without a discussion, that’s really grounded in the data and in the numbers.
I think that probably also gets at one of the questions you were raising before, which is ‘what’s the origin of this?’ I think the origin, in terms of a number of discussions that we as the founders of the company had, was this sort of gradually dawning realisation that there is something a bit odd about the way that important parts of the litigation process are conducted, because traditionally there is a very heavy reliance on anecdotal experience, on gut feel, and intuition. And there’s a lot of finger in the air-type stuff, saying "well, this feels to me like a case that has got about this chance of this prospect of success", or "yeah. I’ve come across this judge once or twice before, I think this is the sort of thing that he or she is likely to be receptive to as an argument".
And, you know, that list could be extended almost indefinitely of the sorts of really important decisions, which traditionally have been made in a fairly ad hoc, anecdotal, gut feely sort of way. I think, if you could summarise one theme which really captures what litigation analytics is trying to achieve, I think, it’s not necessarily to remove that element of gut feel and intuition, and really close attention to the particular facts that you are dealing with, but it is to supplement that with data and rigor as the sort of context within which some of those decisions are, sort of, taken, and some of that advice is given to clients.
So, sort of bringing it full circle, I think the intuition that we had that, in the way - there’s something a bit odd in that, the way that a lot of litigation decisions are taken, very much resonates with what we hear from, in particular, those large corporates who are engaged in a lot of litigation themselves and have felt, from their perspective, some frustration, having observed that same feature as to how, as it were, data blind or how much in a vacuum they’re being asked to take these really important decisions.
So, I think you can kind of see there how bringing data to the conversation doesn’t remove other elements of the conversation, but it should enhance them and enable an explanation to be given by, in particular, lawyers to their clients, as to why it is that they think a certain course of action is justified, or what the risks in a certain course of action might be.
Right the way through the litigation process, you know, from the point at which one is considering whether to file a claim to considerations about settlements, to deciding which personnel to deploy in fighting any claim, to thinking about how to approach a particular judge, and right through to considerations of whether to appeal, or how to deal with an appeal from the other side. So, it’s identifying those key moments where gut feel can, most properly, be supplemented by the data in a way that, hopefully, can really enhance the decision-making that clients and lawyers are making, and the way that lawyers are able to explain their thinking to their clients.
To me, that’s interesting, a very interesting point, because I think some of us in the industry - and I use the term 'industry' very broadly - kind of... We are just used to be[ing] relied upon and not always having to back up assessments with evidence.
I mean, perhaps that’s not as true for the stuff I do, which is very much evidence-based - "and here is how you make a decision", "here is the evidence that is pointing you in this direction" - but, as you say, there is very much a huge element of trust and most boards, quite frankly, don’t want to know their lawyer that well, because it suggests that something is going wrong quite frequently. Or they don’t want to know a forensic accountant particularly well because, again, why would you want to spend your time speaking to somebody who only deals in bad news and probably doesn’t want to deal with their barrister too frequently, because it means they are in court, all of the time.
So, it’s almost a... it’s an unknown world for very-senior decision makers, and being able to back up opinions and viewpoints, and say: "look the intelligence shows that this happened in the past and shows that these things are very pertinent to a decision".
In the same way, whether you decide to close a factory or you decide to make people redundant, you do it based on evidence. You don’t do it based on gut feel, and these are often, as you said earlier, high stakes matters that could actually make the difference between a company surviving and entering into a very painful restructuring process.
I think that’s all something with which I’m going to be in violent agreement.
I think, given the nature of the company...
I think that’s right. And I would say, more generally, actually, which I mentioned before, about the really interesting process of speaking to corporates and finding out more about how they experience litigation, some of their frustrations and we now work with a number of pretty significant corporates.
I think, you know, I’d say, more generally, it’s been interesting to see people who are involved in litigation, but come at it from a, perhaps, more data-orientated perspective than the average lawyer would do. So, you know, being a really interesting experience to see from the perspective of people like Grant Thornton, who are coming at this from a more data-orientated starting point. I think, working with people like Grant Thornton has been really enriching for us, because it does give a somewhat different perspective to that which one might get from speaking to the average lawyer. Although, I would qualify slightly that by saying we are seeing that increasingly that lawyers, whether by inclination or because they can see the way at which the world is going, are becoming increasingly data-savvy and kind of commercially sophisticated in the kinds of data points that they are taking into account in their thinking and their advice. I think that’s been one that speaking to that broader range of people, who are involved in the litigation process in different ways, has been a really interesting experience.
Just to echo the points that you are making, I think, one way to think about all of this, which I sometimes find helpful, is to think about the litigation process in slightly more generic or abstract terms, so I think, to some degree, that helps in revealing what historically has been a bit of an oddity in how litigation is approached compared to other, what we might broadly call, 'parallel fields'.
So, if I put it this way, litigation, in some ways, is about valuing an asset. You know you have a claim or you are valuing a claim, and you have to value the other person’s asset and how much you are wanting to pay. You have a claim, you analyse it and think about what it might be worth as an asset. You then have to recruit a team to help you maximise the value of that asset and that would be, you know, what the lawyers and the litigation advisors and forensic accountants and experts and so on. And then you have to think tactically about whether you can do a deal with somebody on the other side of the table where you agree what this asset is worth, or whether you have to send it off to a third-party decision maker, to allow them to reach a view ultimately, on what this asset is worth and, if you think of the process in those slightly more generic terms, to me, at least, I think, it becomes obvious pretty quickly that there are all sorts of data points you would be looking at very carefully as you go through that process and given, potentially, just how much money is at stake, so you would want to look pretty carefully at how assets of this type have behaved in the past and analyse what the special features of this asset might be, and what sort of difference that might make, you know, compared to historical averages and pounds.
You’d want to analyse pretty carefully all the data you had about whoever was sitting on the other side of the table, and what you might learn about their behaviour and how they have behaved in litigation in the past. You’d want to look pretty carefully at your team as you are building it and see what their track record was, and what had happened and what their kind of experience was, what they’d been involved with in the past and, you know what one might learn from that. And then finally, if you were deciding that you couldn’t do a deal with the other side and you wanted to send this off to the third-party decision maker, you’d want to look at every bit of conceivable information you could get your hands on that might give you a bit of a steer as to how to approach that decision maker in the most-effective way to persuade them of your point of view and how to think carefully about what they might do and, I think, if one puts it in that way, without using the word litigation, or court, or judge, or for that matter lawyer.
I think it’s just a way of revealing, as I was sort of saying before, that not deploying data in this context is really the anomalous or odd thing to do, and that making as much use of it as you can, given the amount of money at stake, is almost a no-brainer and I think that’s something which corporates and certain law firms have now realised. And it’s a realisation that’s gradually spreading, that you know one aspect of the commercial sophistication, that is demanded rightly now in commercial litigation. One aspect of that has to be not disregarding, of all the information out there, that at least has to be considered as having a potential bearing on the really high stakes decisions that are being made throughout the lifecycle of a piece of litigation.
Sure. No, that all makes absolute sense.
I mean, if I string onto a slightly different pattern, if I may, you are clearly very passionate about Solomonic and your work as a barrister has clearly been a lifelong journey and ambition. How do you balance the demands of a heavy case load with setting up and launching a kind of...relatively young company in Solomonic?
Yeah, well, with the occasional difficulty, I would say in terms of time pressure. Yeah, we have a very capable team at Solomonic. I am not an employee or a full-time member of staff there so that gives me obviously a degree of flexibility, although I do like to be involved as much as I can.
I think, probably a little bit of an advantage for me being a barrister is that already has a degree of flexibility built into it, in as much as people can choose how heavy or light to make their caseloads, so you get...and this is, perhaps, a slightly more unusual situation, but you certainly get plenty of barristers who are academics part of the time, or in the case of one prominent recent supreme court judge, a historian, with part of his time, or are involved in some aspect or another of business as well, and I’m sure there are other things that I’m not thinking of that plenty of barristers do with part of their time, and it’s really just a matter of building in sufficient capacity, to make sure that one can do both.
I think that one...really helpful and interesting...this is actually being a degree of cross fertilisation, if I can put it that way.
So, situations I come across as a barrister certainly inform my thinking as to what might be useful for various users of Solomonic and it gives me a kind of eye from an on-the-ground perspective, if you like, on litigation, albeit from the particular view point that a barrister has, but none-the-less involvement in litigation and that I think is helpful.
Conversely, I think that there are certainly aspects of working in a business or being involved in a business, particularly, obviously a business that’s focused on litigation, that enriches one’s view of the commercial realities that are faced in the business world that have an important bearing on litigation in all sorts of ways, but that sometimes I would, at least, not speaking for anyone else, but say for myself, before I had any kind of business world involvement or experience, one could almost take for granted a little bit or not quite have a full feel for, if they are just somebody else’s issues - the non-issues, that oneself has ever, kind of, experienced in seeing how a company actually works.
So, I think there are benefits going in both directions, but certainly is also a time-management issue and, so far, perhaps through good luck and, hopefully, perhaps through a degree of good planning as well, it has worked that there hasn’t been any clash, as it were, in terms of those priorities, so certainly, we have a very capable, full-time team at Solomonic, who are, you know, doing the important things day-in and day-out, and that, obviously, is an essential part of it, because, you know, without a full-time team, as well as those like me, who are sort of dropping in and doing something, and being involved with particular projects, obviously the whole thing just couldn’t function.
Sure. Now, one question that I ask, and I’m saying this because this is probably going to be the episode of our podcast: one thing I’m planning on asking all the guests on the podcast is, quite simply, if you knew now...sorry, if you knew then, what you know now, what would you tell your younger self? Is there anything you’ve learnt that you think would’ve been really vital to know 10–15 years ago?
It’s an interesting one.
I would say there is, but I’m not sure it’s something that would be easily capable of being encapsulating in such a way that my younger self would much know what I was talking about.
So, putting it in that slightly cryptic way, I mean, I once heard somebody say that experience is, you know, bouncing back from any difficult situation one might face and, you know, certainly, as a lawyer, and also trying to get a business up and running, you face all sorts of situations where you think, "hmmm, here’s a real challenge how am I going to handle that?", and it requires a degree of determination, obviously, and resilience, to think about whether it’s "hmmm, that’s an argument I didn’t see that coming in this case, how am I going to counter that as a barrister?", or, "oh, there’s an interesting commercial issue I hadn’t fully thought through", you know, "how are well going to manage that, in a business context?". Either way, the challenge, I think, is one of mindset more than of any particular skill or sort of view of what to do in a particular situation, and that’s why it’s slightly unhelpful, in a way, I’m sure, but that’s why I say, I think, I would know what to say to my younger self, but I’m not sure until one’s had those experiences of, "here’s a challenge, how do we overcome it?", whether or not, you know, micro- or macro-level, it’s something that would be easy to get across.
It’s an interesting thought experiment, in a way, because you’d think that, suddenly, those of us who make our livings using language and trying to explain things, you would hope we have the ability to explain things in a clear and compelling way, but I think there are circumstances which you say, "well, this is what I’m going to tell you, but you’ll only really know what I mean once you’re 10 or 15 years down the tracks and you’ve had those experiences".
Sure. No, I fully understand that and, actually, I think it comes back to a point to what Solomonic helps with, because it’s all well and good to tell somebody something, but without the context, to how that knowledge has come about and those feelings and that experience of going through it, you can’t… You can convey a message, but you can’t convey everything and, actually, using data, I think, to help demonstrate and contextualise a point is, maybe, a tenuous link, perhaps, but really helps somebody to understand somebody else’s position. I think so….
Yeah, I think so.
I think you can look at that almost in two ways and think the first is exactly the way that you say that using data can [be] helpful in precisely the way that you describe.
I think it also gets, actually, at the ways in which what.. part of what’s really important here is the user of the data, so you can convey information.
In this case, from that data, but you also need somebody with the skill and understanding and sensitivity and potentially experience to really interpret that data, use it in the right way, present it to a client - if part of that conversation in the right, nuanced way - and it gets back a little bit to what I was saying earlier, I think, about, we don’t see this as an all-or-nothing, as man bad, computer good, as it were, we see it very much as, "here are some really powerful additional tools that people can be using", but it might actually take some of those harder-to-define, to qualities and experiences for people to make the most productive use of the tools that are available.
Absolutely. That’s really interesting. Thank you so much for making time to speak and really appreciate it.
No, thank you. It’s been really interesting.
Wonderful. Well, there we are then. Thank you, Gideon, for making time to speak with me and thank you for listening.
If you have constructive feedback or any suggestions of who I should speak to, it would be greatly received, but until next time, I hope you stay well and take care.