Trial Risks: Overestimating, Underestimating & Using Our Superpower

Trial Risks: Overestimating, Underestimating & Using Our Superpower

 

“Flounder, you can’t spend your whole life worrying about your mistakes! You [screwed] up. You trusted us!”  –Otter in Animal House (1978)

Not exactly what we want to say to a client. Flounder trusted Otter with his brother’s Lincoln Continental. Our clients trust us with their personal and business conflicts, and we can use our superpower to improve client satisfaction.

For cases that go to trial, client dissatisfaction flows from two primary factors, one related to overestimating and the other to underestimating. When I am helping divorce attorneys as their mediator, I often question assumptions that may be leading toward these over/under screwups.

First, the client, the advocate or both may have miscalculated the probability of winning (overestimating). Our biases lead us into unrealistic expectations: we can control the future and achieve the extraordinary; we accurately weigh confirming and conflicting information; and anyone will simply have to see things the way we do.

Second, the client, the advocate or both may have failed to consider all the costs (underestimating). We underestimate the amount of future time, energy, and effort, as well as fees, expenses, impact on cashflow or finances, time, well-being, lost opportunities, and the like. We also find it hard to cut our losses and move on, stuck on what’s already been spent (our “sunk costs”).

Litigation is inherently uncertain, and even experienced trial advocates have difficulty predicting outcomes and the downside consequences with accuracy. To help our clients, we advocates and mediators assess the likely outcomes, the risks, and the effect of continued litigation on their interests. This includes the direct litigation expenses and the intangible costs of being in the court process. All of this serves as the foundation for informed decisions and consent.

There are many ways to increase our risk-assessment skills and to meet client expectations, and there are many resources for learning practical tools. The good news is that we already have an incredible tool, our superpower: curiosity.

To use our superpower, all we have to do is translate our curiosity into questions, such as:

What’s the essence of the dispute? What will the other side argue? Which elements present some risk of bad outcomes? What’s the range for those outcomes? How can we be sure?

What else might happen? How would we handle worst-case outcomes? What are the probabilities? How can we be sure?

What’s been spent so far? How much more will be spent? How would this spending affect finances?

How has this litigation affected the client? How would continuing on affect the client? How would resolving the matter today affect the client?

In litigation and mediation, clients who carefully consider their interests and their risks enjoy a stronger sense of control and more confidence in both the process and their decisions. They won’t spend their whole lives worrying about mistakes. And they will be more satisfied in trusting you.