35 Okla. L. Rev. 781 (1982)
Taking Risks in the Judicial Process

handle is hein.journals/oklrv35 and id is 791 raw text is: Taking Risks in the Judicial Process

STUART S. NAGEL*
This article will apply some aspects of risk analysis to the judicial
process. It is a type of analysis that can be useful in making decisions,
influencing decisions, predicting decisions, and measuring decisional
propensities. More specifically, risk analysis can help policy-makers
and administrators discover principles that rule the following areas:
(1) when to accept cases on a contingency fee basis, (2) how to in-
fluence judges to be more willing to risk the release of a defendant
prior to trial, (3) how to predict the effect of judicial system changes
on the likelihood of settling a case short of trial, and (4) how to measure
the propensities of would-be jurors (to vote to convict a defendant
who might be innocent) under differing judicial instructions.
Risk analysis is the study of decision making under conditions of
risk, and it aims to discover optimum choices with contingent prob-
abilities. The application of risk analysis to the legal process does not
necessarily involve the element of physical danger present in the risk
analysis of, for example, the safety of nuclear reactors, jet travel, or
rescue missions. Nevertheless, the risks are quite real and substantial
and are found throughout the legal system. They may involve a per-
sonal injury lawyer's loss of a fee by accepting a case on a contingen-
cy basis, a judge's loss of reputation through releasing prior to trial
a defendant who may commit a serious crime while released, a client's
loss of life by a defense counsel choosing to defend against a charge.
of first degree murder, rather than to plea bargain, or a juror's recur-
ring remorse for voting to execute a defendant subsequently found to
have been innocent.
I. Making Decisions
A. Without Time Discounting
The principles of risk analysis may be profitably applied to the ques-
tion of whether a plaintiff's personal injury case should be accepted
or rejected. The following steps tend to underlie any decision made,
whether the attorney consciously follows them or not:
1. What damages are likely to be awarded? Suppose the actual out-
of-pocket medical expenses of this potential client are $300. By a rough
rule of thumb, that means that if I win the case, we will collect about
*Professor, Department of Political Science, University of Illinois at Urbana-Champaign-Ed.

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