Numbers matter. Statistics matter. Trends, both recent and past, matter. And if researched, compiled, and utilized, these numbers and statistics can be a great tool, especially for a younger and newer attorney in negotiations. Something about statistics and probabilities resonate with people. Charts and graphs offer something more tangible than words, whether written or spoken. Numbers appear more scientific and less artful or speculative. People generally prefer that opinions and beliefs have solid bases, and statistics—however broad or narrow, however limited or potentially easily disproved—provide just that.
It is difficult to get through a newspaper without seeing a graph. Political sites like Real Clear Politics begin projecting the next election the day after the previous election, complete with bright visual displays of the findings. Sports programs, including ESPN’s Numbers Never* Lie which lends its name to this post, thrive on statistics as much as replays. Numbers Never* Lie is a roundtable sports discussion program a focusing on statistics and analytics, complete with all manner of visual representation of the prominence or decline of teams and athletes. The asterisk following “Never” in the show’s official title represents the fallibility, manipulability, and potential inaccuracy of statistics, the very flaws that were so eloquently described in the quote popularized by Mark Twain and attributed to nineteenth century British Prime Minister Benjamin Disraeli: "There are three kinds of lies: lies, damned lies, and statistics."
Even accounting for that criticism, or the caveat in every legal services commercial cautioning that past successes do not guarantee future success, at the very least statistical history allows for an extremely valuable commodity for any attorney: perspective. Rates of prosecution or defense verdicts separated by types of violations in criminal practice, as well as average and median jury verdicts and average and median settlement amounts in civil practice provide for better predictability of outcomes for attorneys and parties alike.
Where does one obtain the statistics?
The easiest, albeit most limited, method for a person to obtain data is to track his or her own work. Carefully recorded and documented records of case outcomes provide some possible guidance for future results. This method is clearly limited by a lack of sample size. Additionally, recounting one’s past successes in the course of negotiation can often appear to be pure arrogance and anecdotal posturing. A step up from personal results is to take in data from one’s firm. This information expands the sample size of data, but contains many of the same limitations as using one’s own successes. The use of local newspapers, legal magazines, and legal journals may be the best method to obtain widespread enough data without going to great expense. This significantly increases the number of cases considered. However, even this method has its limitations regarding what cases are actually reported. Defense verdicts, small verdicts, and settlements often go under- or unreported, skewing statistics. The best resource for a larger sample size of case results is through paid subscriptions services like Verdict Search; however, even data from these types of services are often skewed as a result of under-representation and/or unreporting.
How to Use Statistics
Statistical findings can be extremely useful in the course of the proverbial “Come to Jesus” talk with clients. Clients who may question one's knowledge because of a perceived lack of experience, may be more trusting if given a statistical basis for the attorney’s opinion. For example:
Client: I don’t know. I think I can beat the charge.
Attorney: Obviously this is ultimately your decision. Whatever decision you make, you will be the one serving whatever sentence you may get. That being said, over the last few years, this judge has only sentenced one person who went to trial and was found guilty to less than six months in jail. The facts in that case were better than the facts in this one. This judge also almost always accepts the prosecutor’s plea recommendations. If you take the plea, you know your sentence will be a month.
More experienced attorneys are quick to flaunt experience, personal history, and anecdotal conquest in the representation of clients. This background is well deserved and can often serve as a disadvantage to younger or newer attorneys attempting to reach a settlement or plea. Having statistics ready may alleviate this disadvantage. Example:
Young Lawyer: Given your client’s most recent demand, my client just does not believe a settlement over $15,000 is plausible.
Experienced Lawyer: For that, I’m willing to take the case to trial. Juries love me.
Young Lawyer: I’m sure they do, but they don’t like these types of cases. Ninety percent of last year’s verdicts awarded plaintiffs under $30,000 and 30 percent were defense verdicts. Fifteen thousand dollars is actually just above average.
The use of these statistics may be even more effective in a negotiation where the opposing party is present. This circumstance gives an attorney a chance to expose the client to information the opposing attorney either did not know or did not convey. Example:
Young Lawyer: I understand what you are feeling, and realize how $30,000 sounds like a great amount of money. It is. But your attorney is very experienced in this type of law, and I’m sure he has informed you that in matters with this amount of actual damages jury verdicts average from $35,000 to $45,000.
Statistics can be the great equalizer for attorneys lacking personal experience. The information allows for perspective on what is a fair outcome so that an attorney can better serve clients. The information also allows for a basis to temper of expectations. So, while the phrase numbers never lie may require some caveat, those same numbers may prevent young attorneys from being lied to.