When a dispute arises – and the future seems uncertain – legal counsel is turned to for clarity.
The lawyer’s task is to condense any complexity into advice that will help us make decisions. This process of understanding our legal prospects involves analysing the expected outcome based on the factors that will influence the legal decision or negotiated agreement. When we understand our position well, our future decision making can become more informed and effective.
However, it is also commonplace for vague probability language to oversimplify this understanding. When this happens, our perception of reality can be coloured by unconscious bias, impeding our ability to make effective decisions.
When analysis of legal prospects loses value
The innate nature of future predictions is that they cannot have 100% certainty. But in litigation, the absence of perfect information tends to encourage the use of vague language to describe the range of possible outcomes.
Phrases like these are pervasive:
- ‘a reasonable chance of success’
- ‘a case with good prospects’
- ‘an arguable case’
This kind of language normalises vagueness, which is problematic for our understanding. Which of these above assessments suggests the most confidence? Which provides enough confidence to proceed? Which, if any, offers an understanding of why?
How does vague language impact our decision making?
The meaning of language varies between people
Descriptive expressions of probability will be understood differently from person to person. A Harvard Business Review study showed that advising that an event has a “real possibility” of occurring ranges drastically in its interpretation of actuality: between 20% and 80%. When receiving legal advice, similar language that allows us to bring pre-existing beliefs about the situation or associations we have with past outcomes can lead to broad differences in behaviour. What presents as a viable investment to one person, may be a unpalatable risk to another.
We recently created a similar experiment using a poll shared to Aptum’s Linkedin page. We asked: ‘How would you interpret advice that a case has “a real possibility of success”?’ At the time of writing, there was an almost even share of the most popular vote between a 50% and 80% chance of success. Quite a gap.
Numerical estimates of probability are more specific, but their subjectivity can also expose interpretive bias. One reason for this is that probability-based assessments assume an equal attitude towards risk between a lawyer and client. If a lawyer’s advice suggests a 30% chance of losing, a risk averse client may be hesitant to accept these odds of failure.
Though it may actually be that this 30% chance of failure is based on the risk of an event that said client would be comfortable taking a risk on. The event itself could also be investigated further by the lawyer to reduce the risk to an appropriate level, or may not even be critical to the key issue. This is not to say that probability has no place in predicting the future in the law, but statistical language should not replace education about legal risk. There needs to be an understanding of the legal and/ or situational reasoning behind the advice for clients to be properly informed.
Vague language evades accountability
There is an advantage to the lawyer that uses vague language: it affords wiggle room. The lack of precision of vague language translates into an ability to retrospectively talk about the risks based on the outcome. Either, ‘we knew going in there was a reasonable risk of failure’, or ‘we were always confident this evidence would see us win’.
Once we know the outcome, it is easier to rationalise and emphasise the value of the risks that caused a loss, or the factors that led to success. Without the supporting reasoning, there is only the outcome to substantiate the accuracy of the lawyer’s judgement.
Whilst achieving an outcome is ultimately crucial, outcomes alone are not reliable indicators of value or accurate decision making. If we are to win, how will we know if we could have achieved a better outcome, or a more timely one? How will we know whether the case unfolded the way the lawyer anticipated? What is to suggest that a good outcome will be achieved next time?
The language is vague, but the finding is clear. We can’t really know. We can’t properly evaluate the lawyer. We can’t effectively learn from our decisions.