19 Cardozo J. Conflict Resol. 17 (2017-2018)
Litigation Risk Assessment: A Tool to Enhance Negotiation

handle is hein.journals/cardcore19 and id is 23 raw text is: 







           LITIGATION RISK ASSESSMENT:

       A  TOOL TO ENHANCE NEGOTIATION


                             Michaela   Keet*


                           I.  INTRODUCTION


     Comparisons between final settlement offers and trial out-
comes   raise  serious  questions  about   whether   lawyers   and  clients
are making good decisions in the litigation process.! Litigation in-
volves  the exercise  of judgment   in complex   situations with  multiple
uncertainties,  where  common psychological decision-making biases
are sure  to have  influence.2  Without   clear projections  about  where
the path  of litigation is most  likely to lead, clients can be  anchored
in unrealistic expectations   about  the  outcome   and  the  costs of get-
ting there.3  Fundamental to the lawyer's ethical role is the obliga-
tion  to  provide   transparent   information about legal rights and
risks,' and fundamental to settlement processes is the presumption

   * Associate Professor, College of Law, University of Saskatchewan. This paper arises out of
a larger study on risk assessment, completed with Professor Heather Heavin, also of the College
of Law, University of Saskatchewan.
   1 U.S. empirical studies show significant rates of decision error. See Samuel R. Gross &
Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection of Cases for
Trial, 90 Micit. L REv. 319 (1991); Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury
Verdicts in a System Geared to Settlement, 44 UCLA L. REv. 1 (1996); Jeffery J. Rachlinski,
Gains, Losses, and the Psychology of Litigation, 70 S. CAL. L. REV. 113 (1996); Randall L. Kiser
et al., Let's Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement
Negotiations, 5 J. EMPIRICAL LEGAL STUD. 551 (2008); RANDALL KISER, BEYOND RIGHT AND
WRONG: THE POWER  OF EFFECTIVE DEcisION MAKING FOR ArORNEYS AND CLIENTs (2010)
[hereinafter KISER, BEYOND RIGHT AND WRONG].
   2 Andrew J. Wistrich & Jeffrey J. Rachlinski, How Lawyers' Intuitions Prolong Litigation,
86 S. CAL L. REv. 101 (2013). See generally DANIEL KAHNEMAN, TINKINo FAST AND SLOW
(2011); HEURISTICS AND BIASES: THE PsYCHOLOGY OF INTUITIVE JUDGEMENT (Thomas Gilo-
vich et al. eds., 2002); and Heather Heavin & Michaela Keet, Skating to Where the Puck Will Be:
Exploring Settlement Counsel and Risk Analysis in the Negotiation of Business Disputes, 76 SASK.
L. REV. 191, 203 (2013).
   3 Dan Orr & Chris Guthrie, Anchoring, Information, Expertise, and Negotiation: New In-
sights from Meta-Analysis, 21 01110 ST. J. Disp. RESOL. 597 (2005-2006); John Richardson, How
Negotiators Choose Standards of Fairness: A Look at the Empirical Evidence and Some Steps
Toward a Process Model, 12 HARV. NEGOT. L. REv. 415 (2007). For a discussion about overcon-
fidence as a stage in the normal cycles of arousal and tension, and how it impedes settlement, see
Elizabeth E. Bader, The Psychology and Neurobiology of Mediation, 17 CARDOZO J. CONFLIcr
ResoL. 363 (2016).
   4 Stephen G.A. Pitel, Counseling and Negotiation, in LAWYERs' ETHIS AND PROISSIONAL
REGULATION (Alice Woolley et al. eds., 2d ed. 2012). Alice Woolley has suggested that the duty
of honesty and candor requires lawyers giving advice to engage in reasoned explanation of their


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