Positive Negotiations, Part 11: Questions for Assessing Probabilities & Consequences

Here, I discuss three questions that can help people involved in disputes assess how others - and jurors, in particular - may reach decisions based on each side’s best evidence.  I break these questions down into two subparts that solicit responses in terms of the probabilities and consequences of those decisions.  I do this so people can then apply these evidence-based probabilities and consequences to the Risk Assessment Matrix.  That is a tool, which I introduced Part 10 of this series, that people can use to identify, grade, and explain different levels of risk in any given dispute. 

Video Transcript

Hello, and welcome.

In my last video, I introduced the Risk Assessment Matrix - a visual, reason-based tool mediators, lawyers, parties, and insurance professionals can use to identify, grade, and explain different levels of risk in any given dispute. It works by combining the probabilities and the consequences of different potential outcomes. It is only useful, however, if people select well-reasoned levels of probability and consequence for the matrix.  There are three basic questions we can ask to help people with this, and I discuss these in this video.   

First, however, let’s quickly review how the Risk Assessment Matrix works.  

It is basically a table in which each box represents a level of risk, ranging from Low, through Moderate and High, and up to Extreme.  Each box, or level of risk, represents the combination of two things - or two “risk factors”.  One is the degree of Probability of an event or occurrence actually happening, ranging from Rare to Unlikely, Possible, Likely, and up to Almost Certain.  The other is the degree of severity, or the Consequence, of that event or occurrence, and that ranges from Negligible to Minor, Moderate, Major and up to Catastrophic.  To get a fair yet candid risk assessment out of this matrix, we need to select well-reasoned, and therefore reasonable, degrees of Probability and Consequence for any potential occurrence. In the  context of dispute resolution and trials, the potential occurrences we are looking at are verdicts that might return findings of liability, no liability, comparative fault, causation, specific damages, and so on depending on the type of dispute and the type of remedy being sought.  

Now in Part 2 of this Positive Negotiations series I noted there are in fact three different types of risk everybody faces with any trial.  These are Evidentiary Risk, Systemic Risk, and Advocacy Risk.  Of these, Systemic and Advocacy Risks are the wild cards. They are very real. They are present in every trial. They can affect either side. And they can have a dramatic impact. They do not, however, impact every trial, and while each side can guess, or have a hunch, over whether, when, and who they may impact, no one can rationally predict any of that. Why? Because, in very simple terms, these two types of risk are rooted in what is essentially nonrational decision-making. By contrast, however, everyone can make a reasoned assessment of how Evidentiary Risk may impact a trial.  

We can use the Risk Assessment Matrix in assessing these Evidentiary Risks, and the following questions help by guiding each side in their evaluation of what levels of probability and consequence they should plug into that matrix based on each side’s best evidence.  

Now, a quick note on the structure of these questions.  

First, they come in a short form to focus everyone on a specific risk factor, and then they break down into two parts that require responses based on the different levels of probability and consequence.  

Second, they focus on each side’s evidence, and not on any particular party, witness, lawyer, or other person. So no one should take them personally. They are not personal. 

Finally, each question asks what a jury will find from this evidence - not what each party has already concluded from that evidence.  As hard as it can be, everyone needs to work as hard as they can to be objective - and thinking how a jury would think is the best way to do this.

So the first question, in its simplest form, is this: Will the jury find the evidence credible?  

In its two subparts, this breaks down to:

• What is the probability a jury will find this evidence is true, accurate, and reliable? And the options come from the Probability side of our matrix: Rare, Unlikely, Possible, Likely, or Almost Certain. And then,

• So what would be the consequence of this?  And the options here come from the Consequence side of the matrix: Negligible, Minor, Moderate, Major, or Catastrophic.

I will not delve into the ins-and-outs of credibility here, except to say there are a great many reasons why people sitting as jurors may find certain evidence is, or is not, credible - and those findings may not reflect any judgment, good or bad, on the person who presented that evidence. The question comes first, however, because the consequences of a “not credible” finding can quickly tip toward the Catastrophic end of the consequence spectrum.  The less credible certain evidence is to a jury, the more likely it is that jury will reach a decision that will have a significant adverse consequence for the party who presented it.  

The second question is similar to the first, but it is not the same: Will the jury find the evidence coherent?  

This breaks down to:

• What is the probability a jury will find this evidence “fits” with the other evidence in the trial and makes sense overall? Again, the options are: Rare, Unlikely, Possible, Likely, or Almost Certain. And then,

• So what would be the consequence of this: Negligible, Minor, Moderate, Major, or Catastrophic?

Sometimes jurors find evidence is credible, and they find it fits in with all the other evidence in a way that makes perfect sense.  Other times jurors might find evidence is credible, but it just does not fit into a bigger picture that they can clearly comprehend. Again, there can be many reasons for this. The problem - or “risk” - with this is most people feel uneasy with any given claim, defense, or argument if the evidence supporting it doesn't fit together and make sense.  That can also have significant adverse consequences for whoever presents that less than coherent evidence.  

Now, these first two questions really focus on how well the evidence supports a given side’s claims or defenses. 

The third question is a little different, but it addresses a risk factor that can have its own significant consequences.  It is this: Will the jury find the evidence compelling?  

More broadly:

• What is the probability this evidence will cause a jury to empathize with, and favor the proponent: Rare, Unlikely, Possible, Likely, or Almost Certain?

• So what would be the consequence of this: Negligible, Minor, Moderate, Major, Catastrophic?

One can have the most credible and coherent evidence, but if it doesn't move jurors on a gut level it may not be very persuasive - meaning it may only be minimally consequential. On the other hand, there can be evidence that is so moving that it grabs everyone’s attention even if it's not, for example, perfectly coherent, and that can trigger a much more consequential response from a jury.  Once again, there can be many different reasons why a jury may, or may not, find certain evidence compelling, and each side in any case needs to grapple with the evidence of their particular case to figure out how compelling it really is.  

So why use this matrix and why ask these questions?  Well, if we see mediations and negotiations as opportunities for each side to manage, and thereby avoid, the risks of trial, we need some way to help them appreciate what those risks are and why they exist.  The Risk Assessment Matrix is simply one way we can help people visualize what levels of risk they face with a trial.  And addressing these three questions can help individuals understand why those levels of risk exist.  

In my next video I will discuss the Bell Curve of Risks, a different visual tool we can use to help people see how these different levels of risk can impact negotiations.   

I look forward to seeing you then.  

Until then, goodbye.