Posted by: johnocunningham | July 30, 2012

Client Communications Regarding Litigation

What kind of communication do clients really want with respect to litigation?

Of course, they like timely and accurate communication (always) and they like clear and succinct communication (rather than butt-covering talk often couched as “On the one hand, this, and on the other hand that…”).

But what they really, really want is some fact-based assessment of risk and reward. For instance, clients want to know:

  • What are my chances of winning at trial?
  • What is the likely cost of going to trial in a case like this?
  • What is the typical jury or bench award with damages, as alleged or likely to be proven?
  • What is the percentage risk that this judge sides with the plaintiff or defendant vs other judges?
  • What is the track record of opposing counsel?

We all know that these questions can not be answered with precision because they involve forecasts related to multi-variable fact situations, but clients don’t want to hear that. They know the risk cannot be quantified precisely, and they know that forecasting trial outcomes is really educated guessing at best. But they WANT your very best educated guess – based on facts and information – rather than a “seat-of-the-pants” stab at it.

Now, technology is providing lawyers with better ways of answering these questions with facts derived from public and private databases related to prior trial outcomes. These systems can provide historical or trending information based on judges, attorneys of record, facts or findings, and other case variables.

As noted in a article by Tam Harbert, these systems are in their infancy now, but they are developing rapidly. For an example of just one system that is on the market now, check out the Lexis Nexis Legal Analyzer.


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