Risks and rewards drive choices. Legal issues also require an understanding of the game and the rewards. In litigation, for example, he often takes a risk with the random assignment of a judge. The judge may run her courtroom in a strict or loose manner, or she may be known to rule impulsively. Risks may include the likely composition of the jury based on their values ​​and perspectives. Another drawback could also be the financial resources of the opponent. Those funds may be available to pay a hefty verdict, but they are also available to aggressively defend the case before it goes to trial. Or on the contrary, the opponent can declare bankruptcy at the end of the litigation.

Assessing risks and rewards is much like an underwriter assesses a credit risk by assigning a credit rating. No case is perfect, but in evaluating it, the dollar amount marked as the “target” value must accurately incorporate both strengths and weaknesses.

Competent legal counsel will carefully review the law and evidence with their clients at various stages of litigation. This review is similar to a market assessment often used in business, known as a “SWOT.” The acronym is “Strengths, Weaknesses, Opportunities and Threats”. This process often runs backwards from a future time when a judge, arbitrator, or jury will make a decision. The process is always to ask what evidence we have and whether the evidence meets the requirements of the law. For example, is this witness a convincing witness who will make a positive impression on the witness stand? Perhaps the question will be whether a judge will allow evidence to be presented in the case, such as evidence in an age discrimination case that the employer has discriminated against older workers in similar circumstances in the past.

Sometimes the risk is that juries in a particular jurisdiction are known to favor employers or corporations and are not sympathetic to employee claims. A good counselor will have information about the potential jury, judge, or arbitrator. He will also get information on what verdicts have been for similar cases in that jurisdiction.

An effective attorney will reassess the risks and rewards as the case progresses and new information is obtained. Witness statements, newly discovered documents, expert opinions, and cash reserves can all be grounds for a major change in valuation.

All of my clients must also assess their level of determination to pursue the case to a conclusion by arbitration award or verdict. The opponent will use all available negative information to discredit the Complainant. An aggressive adversary will try to scare and humiliate a party with embarrassing facts, such as a previous arrest or incarceration, addiction, job termination, or psychiatric history. Often this information can be excluded from the evidence, but the client must be resilient enough to accept that the other party will use these tactics to shift the focus of evil away from him.

Competent legal counsel will know and articulate the opponent’s arguments early on before the case is filed or served. Just as important, the attorney must have the courage to weigh the evidence as documents and witnesses are presented and tell the client that the case may not be as watertight as first thought. This frank reassessment is a service because it connects the client with reality and saves them the time, emotion, and effort of a prolonged battle without the desired reward.

In my office, we do a role play. We, as lawyers, not only defend the opponent’s case, but we play the role of witnesses, seeing the battle through his eyes and with his emotions. We ask our clients to engage with us in this pre-trial drama, as if they were the opponent, telling the opponent’s point of view of things as the client will likely hear from the witness stand.

Most clients find this role play difficult. But as we remind them again that they are “out of place” they return to the testimony of the opponent, as much as they do not believe it. A positive outcome of the exercise is the client’s appreciation that there is another plausible narrative competing for arbitrator or jury acceptance. This deeper understanding gives the client the power to assess risks more accurately. This knowledge, in turn, helps the client set the best settlement target.

In conclusion, the legal advisor will guide his client to reach a target settlement number. If they cannot reach that number, both attorney and client can trust that trial is the best option.