What Are My Odds?

You walk into your lawyer’s office with a legal case. You discuss the case and s/he says you have a reasonable chance of success if you sue. So, you ask, “What are my odds of winning?” Let’s start with a few facts.

We know from publicly available information that if you have a lawsuit in a New York state court, your odds of getting a reversal or meaningful change on appeal if you lose at trial may be somewhere around 25 to 30% in some courts. In Federal courts the chances of successfully challenging a lower court decision or award are often even lower. But, for purposes of this discussion, let’s assume that overall, the average odds of getting a civil trial result reversed or materially changed on appeal is about 30%. That would mean the chance of having the lower court ruling left undisturbed is about 70%. With those statistics in mind, let’s talk about something called the “chain rule of conditional probability.”

An easy working definition of the chain rule of conditional probability is that it helps us understand the likelihood of more than one event occurring when the outcome of one event depends on the outcome of another. Now let’s go back just a minute. When it comes to civil litigation, we are assuming that the likelihood of getting a lower court decision reversed or materially changed is about 30%. That means we are assuming that the likelihood of having that decision left undisturbed is about 70%. So now, we want to know what the first event might be. And that’s where your lawyer comes in.

In my 50 or so years of practice, no client ever walked into my office with a case in which I could predict that it would be a 100% winner. Why? Because a 100% likelihood of success never gets to a lawyer’s office. It gets settled by the parties themselves. Nor do I recall getting any cases in which I would go out on a limb and tell the client he or she had a 90% likelihood of success. Any lawyer will likely tell you that when a client walks in with a legal dispute, the likelihood of that case being a winner or loser is probably somewhere between 40 and 60% one way or the other. Those are the cases that go to trial. So let’s say your lawyer predicts the higher end, a 60% chance of winning at trial. Now let me diverge for a moment.

Suppose I told you I’m going to flip a coin, and I ask you to predict heads or tails. What are your odds of getting it right? 50/50 of course, or 50%. But what if I tell you that I’m going to flip that coin twice and I want you to guess what it’ll come up both times before I do the first flip? What are your odds of getting it right for both flips? Well, 50/50 on the first one, and then 50/50 on the second one. So, in reality, the odds of predicting the outcome for two flips is 50% times 50%, or 25%. Now let’s apply that to our civil lawsuit.

Remember, your lawyer predicted a 60% likelihood of winning your case at trial. Let’s look at what happens if you win and the other side takes it up on appeal. You have a case that was 60% likely to win at trial, and if you win, we are assuming that the trial result is 70% likely to be left undisturbed on appeal. That means that when you walked into your lawyer’s office in the first place, the odds of successfully trying the case and then keeping that result on appeal were 60% times 70%, or 42%.

Every legal dispute is different of course. And yours may be the one that doesn’t play out using these predictions. However, it’s probably fair to say that if your case is what I might call a garden variety legal dispute that requires a trial because there are disputed issues of fact that need to be aired in court, this kind of analysis can give you a better perspective on whether it’s really worth taking the chance with a trial and appeal, or whether you should consider a settlement in mediation. And keep in mind, not only do you need to make this analysis, but the other side would also be wise to do the same thing.