January 01, 2016

Advance Sheet: Risk Assessment

We seem perhaps on the edge of new territory, where lawyers are no longer held to account for the risks they are asked about, but now must also account for an uncertain and perhaps unlimited realm of the failure to foresee what may happen.

Robert E. Shapiro

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.

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