Advance Sheet: Risk Assessment

Most litigators are unhappily familiar with the need to do risk assessments. Clients understandably want to know what chance they have of success in a particular case, and they never shrink from asking lawyers to tell them. Litigators dutifully respond by saying the chances are 50-50 (standard in an ordinary case) or 60-40 (a favorable case, but not a sure winner) or 40-60 (unfavorable, but far from hopeless). Seldom do you hear 90-10. Most litigators regard such predictions as foolhardy, unless the case can be lost (or won) only as a result of what might be called the lottery effect, say, the chance of getting socked by an imbecile judge or aided by a runaway jury. Even in those cases, chances of 20-80 are more like it these days, given the complexity of cases, inconsistencies in the judiciary, and a somewhat more questionable jury pool.