For James Harrington, statistics are an essential litigation tool. As senior vice president, chief intellectual property counsel at Shire Pharmaceuticals, Harrington uses data analysis in every step of the litigation process, from deciding on lead trial counsel to determining the best strategy in the courtroom.
Harrington began fine-tuning his system of statistical analysis after reading Thinking, Fast and Slow by economist Daniel Kahneman. “Kahneman used litigation as an example where people think it’s open as to who wins,” Harrington explains. “But actually, if you have the right data, you can predict with a high degree of certainty how a case will come out, assuming the case is presented properly in the courtroom.”
To determine their strategy, the Shire litigation teams analyze the success rate for lead trial counsel, the time to trial and likely outcome in a given jurisdiction, the type of patent claim being litigated, the data generated related to prospective jurors, and the history of the trial judge. Based on the predicted results, Harrington will either bring the case to trial and use data analytics to optimize the chance of success, or try to enter into a settlement with favorable terms for Shire.
One of Shire’s most important cases involved the drug Vyvanse, which is used to treat attention deficit hyperactivity disorder. Six generics challenged the patent portfolio. After gathering data on prospective litigation teams, Shire selected the legal firm Haug Partners to try the case. Shire also analyzed the judge’s past rulings and the particular patents in question, after which Harrington predicted with more than 90 percent certainty that Shire would prevail. The data was right—Shire won on summary judgment and the verdict was upheld in the court of appeals. “It’s very unusual to brief a leadership team or board that you have more than a 90 percent chance of winning any kind of litigation, and that was done strictly on the data analysis,” says Harrington.
Statistics can predict a likely outcome, but the numbers are not a guarantee. “It’s not like we’re inputting all the data into a computer and getting the result,” Harrington says. “We still have to try the case.” Even with a 90 percent likelihood of winning, there is a 10 percent chance of defeat.
The opposite holds true, as well. Shire’s legal teams try to settle cases that the data analysis predicts they are unlikely to win, but if the settlement is unacceptable, they will take the case to trial and try to beat the odds. “It can be motivating when the data says you shouldn’t win and then you end up winning the case,” says Harrington. “There is a chance that you can overcome the burden.”
To overcome those obstacles, Harrington uses data—this time, to select litigation counsel and experts and to construct a story in the courtroom. Harrington also uses data analysis during jury selection. Attorneys and jury consultants can quickly collect large amounts of information about potential jurors in order to determine the likelihood of a bias. Through this type of analysis, Harrington’s team can design its courtroom strategy to boost the probability of a win. This strategy works; since Harrington joined Shire in 2004, his team has a 95 percent success rate.
“We’ve been able to protect our franchises brilliantly . . . because we hire really talented people and develop them really well.”
Data isn’t the only key to Harrington’s winning strategy. Shire’s company-wide emphasis on career development ensures that his attorneys are always improving. For Harrington, that emphasis largely manifests as a bottom-up management style. “I’m here more as a coach than I am as the head of a department,” he explains. “Any opportunity to teach the less-senior lawyers and develop them and put them in front of our board or our executives, I will take that.”
In 2017, Shire launched the People, Operations, Development (POD) program, which includes POD Academy, a seven-month leadership and skill development program designed for the company’s in-house legal and secretariat professionals. Claire Debney, director of legal strategy, developed the content for POD and the academy with input from Shire’s general counsel Bill Mordan and other members of the organization’s legal leadership team. They collaborated with Professor Bill Kahn at Boston University to specifically address the career goals of the company’s legal employees. The five-part program includes one-on-one coaching, virtual leadership trainings, and two in-person sessions. A competitive application process ensures that each cohort consists of no more than fourteen participants.
The more effectively Harrington trains his reports, the more likely they are to be chosen for competitive,
company-wide initiatives. In addition to POD, Shire holds multiday development sessions with senior executives and the company’s CEO Flemming Ornskov. The human resources department offers formal trainings, and departments support applicable continuing education programs offered by other institutions. Harrington empowers his lawyers by giving them broad responsibility to perform litigation, contract, patent, and regulatory functions, and holding them accountable for their decisions.
Although some companies might be tempted to reduce professional development offerings to conserve resources, Harrington thinks this is a mistake. Increasing development opportunities not only encourages employees to remain at the company, Harrington says, but also attracts top hires who are driven to work for a company that invests in their careers.
This, in turn, benefits Shire. “We’ve been able to protect our franchises brilliantly, and I think that all of that occurs because we hire really talented people and develop them really well,” Harrington explains.
As the IP department grows, Harrington’s focus is shifting from litigation to development, but he continues to find ways to improve his team’s use of analytics in the courtroom. “It’s not a static process,” Harrington says. “We’re always trying to perfect it.”
Proskauer’s nationally recognized life sciences patent practice counsels leading biologics, pharmaceutical, biotechnology, and medical device clients, meeting their business objectives by developing and executing market exclusivity and freedom-to-operate strategies. We employ comprehensive strategies that draw from our deep knowledge of and extensive experience with patent litigation, contested patent office proceedings, FDA regulations, patent prosecution, patent transactions, and licenses.
Wolf Greenfield commends Jim Harrington for his leadership and vision. As the largest intellectual property firm in Massachusetts according to the Boston Business Journal, we are proud to have helped Shire with its transactions and intellectual property for more than a decade.