Copple & Associates,P.C.

Providing creative and effective strategies

Litigation Evaluation and Strategy

LITIGATION EVALUATION AND STRATEGY DEVELOPMENT

“A lawyer who says his ‘case has a life of its own,’ is a lawyer who doesn’t know his case.” 

                                                                                    
   Hon. Norman Krivosha, 
                                                                 Chief Justice of the Nebraska Supreme Court

Legal issues arise in the course of human actions, and interpretations of law are human judgments, which, like all human decisions, are subject to human vagaries and values. As a result, an analysis of a legal case will never have the clarity or certainty of an engineering or scientific analysis. In addition, most legal cases raise a number of separate substantive legal issues or claims, each, perhaps, leading to a different result, as well as procedural issues relating to pretrial dispositive motions and evidentiary issues. Because these multiple issues are ultimately put before a separate decision maker (judge, jury, or both), predictions regarding the outcome of a case are extremely difficult to make accurately. This lack of certainty can be very frustrating to clients and particularly to senior management trying to integrate the impact of a dispute into the corporate balance sheet or inform investors.

Because of the difficulty of making predictions regarding the outcome of legal disputes, I have adopted and refined several decision science tools to identify the possible outcomes of a legal dispute and to prioritize and “handicap” those outcomes according to probability. Proper application of the tools requires an understanding of statistical probabilities, but more importantly, in-depth knowledge of the dispute derived from interviews with the client team. At the end of the day, by breaking down the multiple variables into individual issues and then calculating the impact of the individual issues on the entire case, the resulting dispute model is based on the team’s best judgment.

Despite the occasional “guffaw” and “harrumph” by senior litigation counsel, these techniques have proven to be very accurate and enormously useful for: 1) developing litigation strategy; 2) evaluating settlement positions; 3) persuading opposing parties; and, 4) briefing senior management. I have used these techniques in evaluating hundreds of large litigation matters covering the full range of civil litigation, including securities fraud, class actions, intellectual property, environmental and toxic tort. In most cases, after going through the rigorous process, even the original detractors have become converts and now request these evaluations of their most difficult and high exposure cases.

It is not possible to provide a full discussion here of these evaluation techniques. Instead, the following diagram provides an abbreviated example of the use of decision tree analysis to evaluate a simple contract case.