And, then using percentages and probabilities, individuals can make accurate assessments about whether it is better to sue the pants off their antagonist, or whether is better to have (as they say on the Sopranos) a "little sit down."
Randall Kiser is a rather modest man. He describes himself and his colleagues as "bean counters", and he thinks that his business affairs are "not that interesting." Actually, what Kiser has to say is quite fascinating.
If you watch the television news, it would appear that most of the world goes about the day creating havoc. Randall Kiser on the other hand, a trained decision analyst, helps clients involved in litigation matters, make good and profitable choices
Kiser does not offer them advice; he just works out the probability of success based on certain key variables. "I don't have an opinion," says Kiser "I just tell people the probable outcomes."
It is a strictly by the numbers game for Kiser. When it comes to the success or failure of various litigation strategies, Kiser has developed a list of 20 variables, focusing on two key categories.
The first category he calls the "Actor Variables". Using some sophisticated software, Kiser plugs in the facts. "We look at the gender of the party involved, or whether it is a corporation or an individual," Kiser says. "We also look at the attorneys, whether they are part of a team of attorneys, or whether they are male or female and how long have they been in practice."
The next thing Kiser looks at is what he calls the "context variables." Kiser calmly reels off the list of possible situations. "We want to know if there is insurance involved, is it jury trial," he says. "We look at the underlying wrong doing, whether or not it is an act of omission or commission."
When Kiser starts laying it out, you can understand how these kinds of things definitely play into litigation strategies. It seems rather obvious in a way, but you have be a trained decision analyst really to get to the heart of the numbers.
Kiser and a colleague reviewed some 2,054 cases that went to trial between 2002 and 2005. Their study will be published in the September issue of the Journal of Empirical Legal Studies.
However, here are a few appetizers from the as yet, unpublished research.
All the cases Kiser looked at were cases where a settlement offer had been made, but the case subsequently went to trial. The idea was simply to compare the settlement offer, with the trial result and see which side benefitted from the decision.
Simply put, were the parties right to "hold"--or were they right to "draw another card."
There are some very clear messages in the research. The first one is that plaintiffs often make the wrong decision when they decide pass on the settlement and go to trial. According to Kiser's research, plaintiffs were wrong to go trial in 61 percent of the cases. Defendants made the wrong decision to go to trial in 24 per cent of the cases.
On the other hand, in 15 percent of cases, both sides made the right decision by going trial. In other words, the plaintiff got more at trial than the defendant offered, but the defendant paid less than the plaintiff was demanding.
When plaintiffs make the wrong decision, on average, it costs them about $43 thousand. When defendants make the wrong decision, it really costs. Kiser's research shows defendants will pay out, on average, $1.1 million for a wrong decision.
Plaintiffs, particularly in medical malpractice suits, often make wrong decisions. "In medical malpractice cases, the decision error rate for plaintiffs is 81 percent," says Kiser. "That would contrast with a plaintiff decision error in a contract case of 41 percent."
Here is another important point from Kiser's work. Over the last 40 years, fewer cases go to the trial stage. But, according to Kiser's numbers, when they do go to trial, it is often a wrong decision.
The reality is that 80 to 92 percent of litigation is actually settled before the trial stage. Still, Kiser's research will likely give lawyers and clients a moment's pause when considering whether to take what's on the table, or go rooting around in the cupboard for more.
Randall Kiser is a non-practicing attorney. He is the principal analyst at DecisionSet in Palo Alto, California. His present research interests are professional expertise, problem solving and system failures.