August 2011 • Volume 99 • Number 8 • Page 382
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Don’t be an oddsmaker
It's a bad idea - maybe even an ethics no-no - to tell clients what you think their chances of winning are, an ISBA lawyer opines.
"What are my chances of winning this case?" clients often ask. Fifty-fifty? Sixty-forty?
Though many lawyers' natural instincts may be to answer that question, Daniel Kegan of Kegan & Kegan Ltd. in Chicago explains in the June 2010 issue of ISBA's Intellectual Property Section newsletter why they should stifle those urges. Above all, resist the pressure to provide probability figures, he says: you're probably not competent to do so, and if you do, you'll likely violate ethics rules by providing your client inaccurate and misleading information.
Not enough information
Kegan begins by providing definitions of terms that lawyers, insurance adjusters, mediators, and others involved with litigation often bandy about. "Probability" and "chances" are synonyms, meaning "a number expressing the likelihood that a specific event will occur, expressed as the ratio of the number of actual occurrences to the number of possible occurrences." "Uncertainty" is not measurable and not possible to calculate. "Risk" is "the possibility of suffering harm or loss; danger."
"Humans are poor probability estimators," Kegan writes, for they do not learn well from experience. Moreover, they tend to be optimists who overestimate the probability of positive outcomes and underestimate the probability of negative events. And, he says, the judgment of trial players is often affected by their positions in the litigation.
So how can litigators improve their judgment so as to better advise their clients? Assessing a case's merits requires lawyers to collect and analyze a large number of potentially relevant facts, rules, including case holdings and citations, statutes, and regulations, exceptions to those rules and the exceptions to the exceptions, and evidence, Kegan notes. On top of that, levels of proof differ from case to case, ranging from the "preponderance of the evidence" to "clear and convincing evidence" to "beyond a reasonable doubt." None of those standards have been officially defined mathematically, Kegan says, though some have tried: Kegan cites studies that have assessed those standards as 51 percent, 67 to 75 percent, and 90 percent, respectively.
But those numbers still would not yield the probability of winning. To make that assessment, lawyers would need to consider even more data, including information available from the Federal Judicial Center and the administrative offices of the state and federal courts, scholarly research on local forums and juries, statistics regarding the dispositions of lawsuits by dismissal, abandonment, settlement, or argument, and more focused statistics on cases by type and individual forum.
What is your client really asking?
Still, though, assessing an individual case's chances is difficult. "Frequencies of plaintiffs 'winning' vary by year, cause of action, state, federal circuit, and judge. Frequencies of winning also vary by the facts of the case, the relative commitment and financial resources of the parties, the competence of the attorneys, and of judges," Kegan writes. "The probabilities of winning a positive decision are not simple, linear multiplications of the discrete probability of each element of a trial." Kegan notes that reported data is sometimes incorrect and points out the difficulty of determining which databases to use in answering the facile question, "What are my chances of winning?"
In any event, "winning" may be illusory, he says. "Besides the distraction and expense of management time, which is not compensated by an award of attorneys' fees, besides the stress of a few years of conflict, besides the uncertain discretion of the court to award attorneys' fees to the prevailing party - if such is even authorized by statute, most US courts often award a prevailing party only a part of their legal costs, and even after a robust judgment, collection and possible defendant bankruptcy loom."
Kegan points out that clients may well not be voicing their real concerns when they ask about their chances of prevailing. For that reason, as well as because of the myriad of other problems associated with providing a numerical answer, he recommends that lawyers try to discern and respond to their clients' subtextual emotional concerns.
Reminding clients of the stages and uncertainties of litigation and the opportunities for opening and participating in settlement discussions, as well as reviewing any other alternatives for conflict resolution, is generally helpful, he says. At most, lawyers may wish to explain briefly that providing numerical probability is not possible. "An attorney can provide both valid case evaluation and client emotional support without fabricating false certainty."