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Friday, December 14 , 2018, 7:43 am | Mostly Cloudy 48º


Brian Burke: About Your Divorce (Letter 95) — The Good Old ‘Slam Dunk’ Case

Dear Pinky and Spike:

The good old “slam dunk” case.

In the last letter, I recommended the podcast Rationally Speaking as a source of information that can help the curious listener both understand the way we think and also explore potential areas for improvement. It is also an opportunity for those involved in divorce to emerge as a “better” person at the conclusion than they were at the outset.

In a recent podcast, Julia recommended a book called Decisive: How to Make Better Choices in Life and Work. Julia is remarkably guileless when she describes the way she engages the external world with her capacity to think. In one program she said something to the effect of, "As a Baysian, I have lots of opinions but try to be aware of my 'priors' [viz. beliefs held before receipt of new relevant evidence] and to hold them loosely so I can do a better job of giving appropriate weight to new evidence."

For those of us who tend to form more opinions than necessary, trying to “think like a Baysian” is more feasible than trying to “keep an open mind.”

On Julia’s recommendation, I got a copy of the book, which is written by Chip Heath, a professor at the Stanford Graduate School of Business, and his brother Dan Heath, who is a fellow at Duke University’s Center for the Advancement of Social Entrepreneurship. Their previous books, both bestsellers, are Switch and Made to Stick.

For me, it was a quick and not-very-memorable read until I got to page 120, which brought me to a dead stop. They say:

“As an example, imagine that you are indeed consulting an IP [Intellectual Property] lawyer about a potential patent-infringement suit. The right kinds of questions to ask him are: 'What are the important variables in a case like this?,' 'What kind of evidence can tip the verdict one way or the other?,' 'In percentage terms, how many cases get settled before trial?' and 'Of those that go to trial, what are the odds that the plaintiff prevails?' If you ask questions like that — questions about past cases and legal norms — you will get a wealth of trustworthy information.

“On the other hand, if you ask a predictive question — “Do you think I can win this case?” — it will trigger the lawyer to slip into the inside view … [and] your lawyer will be too optimistic about the chances of success.

“We don’t want to overstate the case here — a good IP lawyer will surely know the difference between a slam dunk case and a long shot. The point is that the predictions of even a world-class expert need to be discounted in a way that their knowledge of base rates does not. In short, when you need trustworthy information, go find an expert — someone more experienced than you. Just keep them talking about the past and present, not the future.” [emphasis supplied]

This is bad advice. In addition to the fact that after several readings I don’t understand the second sentence of the third paragraph, there are at least three problems:

1. Slam dunk! The Heaths say, “... a good IP lawyer will surely know the difference between a slam dunk case and a long shot.”

There is no such thing as a “slam dunk case” for presentation to a jury. A lawyer making this kind of characterization is a lawyer who hasn’t handled enough jury trials. In the context of the quoted material, the “good IP lawyer’s” evaluation is made before a case has been filed, before a jury has been selected and before evidence has been presented to that jury. The information on which to base an evaluation increases significantly at each stage, but we can never responsibly and reliably anticipate a jury’s verdict.

A client who acts in reliance of a lawyer’s assurance that she’s got a “slamdunk case” is likely to have exactly the same experience that President Bush had when he relied on George Tenant’s Dec. 12, 2002, statement that the evidence of Iraq’s possession of WMDs amounted to a "slam dunk case."

2. Past, present, future. The example ends by labeling information about the past (good), about the present (good) and about the future (bad). This is a slippery distinction. The information about the past and present (whatever that might be) is useful only for the purpose of anticipating future outcome. Other than idle curiosity, why would anyone be interested in historic information such as: “How often do plaintiffs in patent infringement cases prevail?”

3. So what? The first set of questions seeks information that we are rarely able to provide — and when it is available, it is of dubious usefulness. The quotient of the number of plaintiffs’ verdicts divided by the total number of cases tried yields a percentage. That percentage is significant of nothing unless there is some established relationship between the previous ration of plaintiff-to-defendant verdicts and the population studied is a statistically sufficient representative sample.

A statement like, “There were 41 plaintiffs’ verdicts in the last 100 trials,” could be the same as saying, “In the last series of 100 coin tosses there were 41 heads.” In the latter example we know from zillions of coin tosses that the odds remain 50-50. It may or may not be the same for the jury trial outcomes — some sort of relationship between the historical information and the probability of a future event has to be established.

Lawyers are not very good at predicting the outcome of trials, and the kind of information described by the Heaths is of dubious value. Far more useful questions would be: (a) “If we prevail, will we be able to collect damages from this defendant or will it go bankrupt?” and (b) “What will the lawsuit cost and is your firm willing to put a cap on its fees?”

While writing this letter I recall that I did some defense work for a major automobile insurance company for three years and was able to observe and participate in an elaborate and conscientious case evaluation and settlement process. I attended several major internal settlement conferences at which a dozen experienced claims agents sat at a circular table and evaluated 20 or 30 cases. Each gave an opinion as to the value of the case before the senior claims adjustor established a “settlement range” to be communicated to the defense lawyer. If the case was actually tried, the company sent a new claims rep to the trial to observe and to report to the senior adjustor, who would increase the settlement range if the case didn’t go as well as expected. This company could and would have commissioned any statistical study that might make claims adjustment more efficient, but I never heard a company employee or representative refer directly or indirectly to the use of statistics as a basis for evaluation of settlement of claims.

When a jury is involved, predictions of outcome are notoriously unreliable. This is partly because of the enormous complexity of the interaction of twelve sequestered people. Juries are no longer used in divorce cases. It’s easier to anticipate what a single judge will do in a particular case, but even then, the use of the adjective “predictable” is dubious.

In the next letter I’ll describe the circumstances where we can make fairly reliable predictions within a range and the circumstances that can result in decisions we don’t expect and can’t explain.

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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