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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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