Discussing Litigation Prospects of Success in Percentages

“What are our chances of success?”

Every litigation lawyer’s client

That is a question a client will inevitably ask his or her lawyer about a case in court. It is understandable. Their personal fortunes are tied to the case. They are anxious and stressed about whether they will succeed or lose. Nobody goes to court wanting to lose unless it is part of a larger strategy.

Usually that assurance is expected to be expressed as a percentage as if predicting success in litigation were capable of scientific precision or was some statistical exercise.

For example, What do I actually mean and what do they understand when I say, We have a 70% chance of success? That we are likelier to win? But there is also a 30% likelihood of losing. It may seem to me less likely but it is still a likelihood. But am I even competent to give such an answer from a statistical perspective? I don’t think so. Is it even possible to calculate the likelihood of success for something so subjective? I doubt it.

So if and when I speak percentage, I mean it figuratively. It is to give some comprehensible form to express what is really a “feeling of likelihood” as opposed to an actual likelihood. But not all clients understand that, and fewer appreciate that. The sensible clients don’t hold you to that percentage because they know it is merely an indication.

I once saw how horribly wrong it could go if we use percentages to describe our optimism or pessimism about something. It was in a medical negligence case brought by the deceased’s children against a hospital and a doctor, after the hospital sued them as guarantors for the medical bills. We sued for the hospital in the latter suit and defended it in the former suit.

After reading the medical reports, I thought the deceased didn’t stand a chance. She was in bad shape when she arrived at the hospital. She should have been given palliative care. Instead, she went for an operation. Her children consented.

When I met with the deceased’s children to see if we could settle the respective suits, they were emotional and went on about how the doctor said their mother had a “60% chance of survival” and how he had lied to them. In retrospect, I should not have tried to point out that she had a 40% chance of dying, which meant death was still within striking range of possibility. That got them even more enraged and soon they were just shouting “60% chance of survival” as a reply to anything. We didn’t settle.

Both cases went to trial and the hospital won both cases. I felt sorry for the deceased’s children. They were fixated with that number throughout the case; it haunted them and they haunted us with it. They could not distinguish between the literal and the figurative.

The difficulties lawyers have with giving a straight answer to that seemingly simple question is because there are so many contingencies in litigation, in contract negotiation, or really any enterprise that it is hard to boil it down to a solid certain number.

To give you a sense of it, answer this: how will we feel 103.4 hours from now? It’s pretty hard to say now. But the closer we get to the 103.4 hour mark, the more certain we will be about how we feel then. In short, the closer we get to end, the more accurately we can predict the end.

Litigation is like that.

That is why that question is hardest to answer at the start of the case. How the case develops depends on many factors – the availability of the supporting documents, where the statutes or case law stands, the readiness of the witnesses and what they actually say, the competency of the lawyers on the day of the trial, the competency and alertness of the trial judge, the vicissitudes of the pre-trial applications and pre-trial rulings, etc. All this cannot be predicted at an early stage.

The closer we get to the end of the trial or hearing though, the more material we have as a basis for making a prediction. We can consider the evidence presented and compare it against the pleadings, the witnesses performance, the judge’s reaction to the witnesses and counsels performance during trial, and the strength of the competing arguments presented, in assessing the chance of success, for example.

At the start of the case all these matters are known unknowns. And when I say ‘case’, I mean those cases where the chances of success are finely balanced or unknown, not those slam dunk wins like credit card or loan default claims.

The most appropriate time to ask this question is after the conclusion of the trial or submission. That’s about the time before the court delivers its judgment.

But let that never detract from the fact that any prediction lawyers make about how the case will be decided is ultimately a guess; no one truly knows what is in the head of another or what the future holds; unless corruption is involved.

But on the off chance you do possess the genuine gift of telepathy or clairvoyance, please get in touch. I think we can work fruitfully together.

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