What does a “fair chance” mean? And other ambiguities.

A client asks “what are my chances of winning?” The lawyer leans back, looks in the sky, leans forward and says “you have a fair chance” and the client is happy. But what does the lawyer mean? And what does the client understand? Should the client be happy?

In 2018, the clever people at Balance Legal Capital (a litigation funding firm) did a survey asking 250 lawyers to put a % chance of success when a (probabilistic) phrase was used: Litigation Superforecasting Survey Results Part 1 | BLC (balancelegalcapital.com)

To pick just a few of the results:

·         Lawyers thought “strong prospects” had a mean average of 71.8% chance of success but the standard range was between 64% and 80%.

·         “Fair chance” had a mean of 52% chance of success but a range of 41% - 62%.

·         “Reasonably arguable” had a mean of 46% and a range of 33% - 58%.

So this shows that lawyers themselves can mean a range of different % when using the same words to describe the likelihood of winning or losing. Even lawyers therefore disagree about what a phrase means (anyone used to lawyers will not be surprised by that).

This is a recipe for misunderstanding especially when you remember that clients, like all human beings, suffer from their own biases and assumptions. In particular there is the well-documented human tendency to interpret advice in a way which confirms existing assumptions and beliefs and optimism about the future. The likelihood is that most clients will think they have a stronger case than they actually do and so will interpret ambiguous advice in a way which confirms this belief. This is not intended to be disrespectful to clients, rather it is a psychologically likely fact.

In practical terms this means that when told a case has a fair chance they might reasonably interpret this as c.60% chance of winning when in fact the lawyer might mean that they will probably lose (if the lawyer is at the 41% range). The ambiguity of language leads to miscommunication.

Startlingly, according to Balance Legal, solicitors and barristers inherently tended to mean different things. The survey showed differences between solicitors and barristers, with the latter tending to mean a lower % number despite using the same phrase. This might be because solicitors see many more cases settle than barristers do and so see fewer losses (barristers only ever being instructed on the ones that fight).

What can be done about this?

My view is that to get precision and clarity the lawyer needs to having the courage and conviction of giving a % figure. This reduces the scope for misunderstanding. And indeed the process of formulating a figure should also force the lawyer to apply a more rigorous and rationale analysis to the various risks, rather than a mere intuitive or instinctive summary.