Risks and rewards drive choices. Authorized questions also require an understanding of the gamble and rewards. In litigation, for example, you often take your possibilities with the random assignment of a judge. The choose may handle her courtroom strictly or loosely, or she may be known to rule impulsively. Risks can include the doubtless jury composition based mostly on their values and outlooks. Another downside could also be the financial resources of the opponent. These funds could also be available to pay a dimensionable verdict, but they are additionally available to defend the case aggressively earlier than the case reaches trial. Or conversely, the opponent may go bankrupt on the end of the litigation.
Assessing risks and rewards is very similar to an underauthor evaluates a credit risk by assigning a credit score. No case is perfect, but when appraising it, the dollar quantity marked as the “target” value ought to accurately incorporate both strengths and weaknesses.
A reliable legal counselor will caretotally overview the law and evidence with his shoppers at numerous phases of litigation. This overview is similar to a ceaselessly used market valuation used in enterprise, known as “SWOT.” The acronym is “Strengths, Weaknesses, Opportunities, and Threats.” This process is often run backward from a future time when a choose, arbitrator or jury will be making a decision. The process is always one of asking what proof do we now have and does the proof satisfy the requirements of the law? For instance, is this witness a convincing witness who will make a constructive impression on the witness stand? Perhaps the query shall be whether or not a decide will enable proof into the case, resembling proof in an age discrimination case that the employer has discriminated towards older workers in related circumstances up to now?
Generally the risk is that juries in a particular jurisdiction are known to favor employers or corporations and to be unsympathetic to lawsuits by employees. An excellent counselor may have details about the possible jury pool, judge, or arbitrator. He will also get information about what verdicts have been for similar cases in that jurisdiction.
An efficient counsel will reassess risks and rewards because the case progresses, and as she obtains new information. Witness statements, newly discovered paperwork, expert opinions, and money reserves may be reasons for a material shift in valuation.
All my purchasers must also evaluate their degree of resolve to press on with the case to a conclusion by arbitration award or verdict. The opponent will use each available negative piece of knowledge to discredit the Plaintiff. An aggressive adversary will attempt to frighten and humiliate a party with embarrassing facts, equivalent to a previous arrest or incarceration, addiction, a job firing or a psychiatric history. Usually this data might be excluded from proof, however the client should be resilient enough to simply accept that the other side will use these techniques to shift the main focus from its wrongdoing.
Capable legal counsel will know and articulate the opponent’s arguments from the outset earlier than the case is filed or served. Just as importantly, counsel will need to have the braveness to weigh the proof as it comes in by documents and witnesses and to tell the shopper the case will not be as air-tight as first thought. This candid reassessment is a service because it grounds the shopper in reality, and saves the client the time, emotion and effort of a protracted battle without the desired payoff.
In my office, we role-play. We as attorneys not only make the opponent’s case, but we play the part of the witnesses, seeing the battle via their eyes and with their emotions. We ask our purchasers to interact with us in this pre-trial drama, as if they had been the opponent, telling the opponent’s view of things because the shopper will doubtless hear it from the witness stand.
Most purchasers find this position-playing difficult. But as we remind them again that they are “out of character” they return to making the opponent’s testimony, however a lot they disbelieve it. One positive consequence of the exercise is the consumer’s appreciation that there is one other plausible narrative vying for acceptance by the arbitrator or jury. This deeper understanding provides the client the ability to assess risks more accurately. This information, in turn, helps the shopper set the best settlement target.
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