In May 20, 2013, I attended an excellent online seminar where the instructor asked a virtual classroom full of attorneys to ascribe a percentage likelihood of success to the words "fighting chance". In other words, if a lawyer told you that you had a "fighting chance of winning" what percentage of winning would you think you had? The fascinating online results poll revealed (and remember these are attorneys answering these questions) that a quarter of the audience thought that a "fighting chance of winning" meant a 75% chance or better of winning. Half of the audience thought that "a fighting chance of winning" meant between a 25% and a 75% chance of winning. And the final quarter of the audience thought that a "fighting chance of winning" meant only a 25% chance or less of winning.
The Merriam-Webster Dictionary definition of "a fighting chance" is, "a chance that may be realized by a struggle." Which is not very much help. Because depending on the context that the phrase is used in, the tone of voice of the lawyer saying it, and the hopes and needs of the client-listener -- "a fighting chance" can mean almost anything to anybody.
This is why I speak to clients in terms of numerical percentages.
Colleagues have criticized me, asking, "Michelle, how can you know that the client has a 35% likelihood of winning the motion?" The answer is that after 20 years of experience, consulting with the other lawyers in my firm, considering the history of the case, and researching the judge's general disposition to similar issues -- 35% is my best guess.
In any event, "a 35% likelihood of winning the motion" is simply CLEARER than "a fighting chance of winning the motion." "A fighting chance" can mean lots of things to lots of people. But "35%" means about one time out of 3 times, to EVERYBODY!
However...what a client does with the information that they have a one in three chance, is up to the client. Which is where the decision making belongs - with the client.
Let's look at the problem from the after-the-fact angle. The lawyer tells the client that he has a 35% chance of winning the motion, if the client decides to make the motion. The lawyer also tells the client about the cost of making the motion, the time frame, other pros and cons, and, of course, his alternatives to making the motion. The client takes all the information, consults with his team, thinks about it, and decides to make the motion. Then the motion gets made...and lost.
Let's consider the conversation between lawyer and client after the loss. If the lawyer had told the client, "You have a fighting chance of winning the motion...", the client may very well end up saying to the lawyer (indignantly), "But you told me we had a fighting chance!" On the other hand if the lawyer told the client, "You have a 35% chance of winning the motion...", what can the client say then? "But you told me I had a one in three chance of winning!" Yeah...and you lost, which you had a two out of three chance of doing!
This is not about a lawyer covering himself with the client. This is about communication. This is about clear and precise communication. This is also about analysis. Frankly, when a lawyer and his firm colleagues force themselves to think in terms of percentages, rather than in terms of emotionally charged language, they too often end up seeing the case in a clearer light.
Labels: Ch. 13 - A Fighting Chance