Lawyers are frequently asked to predict the outcome of litigation.
Predictions are important in many other fields such as economics, politics, the weather and earthquakes.
The future performances of employees and athletes are regularly the subject of prediction. Predicting the performance and character of persons is very difficult. Lee Kuan Yew as Prime Minister of Singapore when discussing the appointment of ministers stated “despite all the psychological tests, we could never accurately assess character, temperament, and motivation”. See Lee Kuan Yew: The Grand Master’s Insights ….. by Allison and Blackwill (2012).
In the field of politics the polls sometimes fail to predict results. The source of such failings is an erroneous belief that a sample randomly drawn from a population is representative or similar to the population in all essential characteristics. Daniel Kahneman in his book, Thinking, Fast and Slow (2011), states that there exists a strong bias toward believing that small samples closely resemble the population from which they are drawn – see page 461.
In the last 25 years great advances have been made in predicting the weather. But predicting earthquakes remains elusive. See The Signal and the Noise, Why so Many Predictions Fail – but Some Don’t, by Nate Silver (2012).
In economics long term predictions are perilous. “Prediction in a system as complex as the economy over anything but the very short term is next to impossible – see The Origin of Wealth (2006) by Eric D. Beinhocker, page 15.
When presented with a claim, lawyers are frequently asked to predict the outcome of court action, if required. The complexity of most claims makes the outcome uncertain. Some of the elements of a claim that must be considered by a lawyer are:
- preparation of legal position, case law and statutes;
- preparation, proof of facts, documentary evidence;
- preparation, proof of facts, testimony of witnesses;
- preparation, evaluation of competence of the opposing lawyer;
- preparation, evaluation of trial judge.
More than 90% of claims are settled without a trial. Claims that proceed to trial are sometimes uncertain because of the difficulty of assessment of the credibility of witnesses. A former trial judge and later chief justice of New Brunswick told me that the most uncertain element of a trial is how the witnesses testify.
The risks of predicting a trial court judgment are compounded if the claim goes on appeal where appeal court judges frequently place an importance on facts not regarded as important by the trial judge.
Litigation can be expensive. Consider the proverb “Fond of doctors, little health, Fond of lawyers, little wealth”.
“Prediction is very hard, especially about the future” – Yogi Berra