A .pdf version of this advanced decision tree is available here.
Decision Tree Analysis isn’t new to litigation, and it isn’t new to this site either — we discussed the basics
a few months ago. But when you’re ready for an advanced take on the subject, where do you turn? All roads lead to Marc B. Victor, Esq.
, who pioneered the application of decision tree analysis to litigation in the 1970s.
Through his company, Litigation Risk Analysis, Inc., Marc has taught decision tree analysis in the litigation context to over 10,000 senior legal professionals, some of whom no doubt had a hand in the American College of Civil Trial Mediators awarding Marc their Education Award of Excellence in 2003. Marc was kind enough to guide me a bit when we began our series on decision trees a few months ago, and I have wanted to flesh out some of the details with him since those initial discussions. The Q&A below is the result of our recent follow-up interview.
How did you first put together litigation management and the decision tree concept?
It was truly fortuitous. I was a joint JD/MBA student at Stanford in the mid-1970s and had a summer job for a company bringing an antitrust suit against IBM. I happened to have lunch with one of our lawyers the same day the president had asked him if $10 million would be a reasonable settlement. As our lawyer walked me through what might happen if we went to trial — “if the judge rules for us on issue 1, and the jury then finds for us on issues 2 and 3, and then believes our expert on issues 4 and 5, we’ll win a lot of money; on the other hand, if . . .” — my Decision Analysis course at Stanford came to mind. I started sketching the tree that fit his description of the twists and turns the case could take. Over the next few weeks, we worked with outside counsel to finish the evaluation, presented the tree and the results to the president, and the matter settled soon thereafter.
What are the primary ways lawyers and clients are using decision tree analysis in litigation?
I believe there are a few ways: (i) to be sure the lawyers have a clearer understanding of the key issues, uncertainties and exposure presented by a case; (ii) to gain settlement authority from the client; (iii) to convince the other side to accept a given settlement; (iv) to persuade a mediator or settlement conference judge of the rationale of their position; and (v) to plan a cost-effective litigation strategy.
Have you seen decision trees used effectively in mediation?
I have been asked to present decision trees as an advocate in mediation, and it certainly helps show the mediator that my client and I have a reasoned basis for our settlement position. I have also been retained by mediators on several occasions in large cases to help the mediation process by getting the parties to agree on the appropriate decision trees, discuss arguments, and assess probabilities and verdict ranges. These cases have typically involved hundreds of millions of dollars, and by way of example include the $1.1 billion class action settlement of the Microsoft antitrust claims in California a few years ago.
What is the mistake lawyers and clients most often make as they learn to use decision trees in litigation?
The first is making just a one-node “we win overall/we lose overall” tree, and another is failing to do thorough “Lists of Reasons” before coming up with probabilities in the case.
Let’s take each of those in turn. What’s the issue with a “one node” tree?
Some people limit their tree to a simple “we win/we lose,” despite the fact that there may be multiple underlying questions the jury or judge will deal with that will influence the ultimate outcome of the case — evidentiary rulings, alternative causes of action, potential defenses, and other uncertainties. The parties and their lawyers would end up with a better evaluation of their overall chances of winning and losing if they would model these underlying issues and influences in a larger tree and then use probability arithmetic to arrive at the overall result. [Editor's Note: More on the process can be found in Marc's article, "Interpreting a Decision Tree Analysis of a Lawsuit," available on the articles page at litigationrisk.com.]
And what do you mean when you say that some users fail to generate “Lists of Reasons”?
Too many novice users of decision trees jump immediately from building the tree to filling in their probabilities. But a probability that’s thrown onto the tree without first thinking rigorously about what the judge or jury will be weighing at trial won’t be as good as one made after doing so. The “List of Reasons” is a summary of factors — pro and con — that the judge or jury will consider in deciding who should win each of the uncertainties represented on the decision tree. This might be information on hand, such as key documents already in the file, but it might also include facts that could be uncovered in discovery, as well as witness strength, sympathy of the parties, and more. [Editor's Note: For more on Lists of Reasons, see pages 12-8 to 12-9 in "Evaluating Legal Risks and Costs with Decision Tree Analysis," which is reprinted available on the articles page at litigationrisk.com; it also appears in the ACC's Successful Partnering Between Inside and Outside Counsel.]
As a case progresses, how often should the parties update their decision trees?
The decision tree should be updated whenever there are new developments that would cause a significant change either to the structure of the tree itself (such as when a new cause of action is plead) or to the probabilities (because of what’s learned as discovery progresses, for example). In addition, it’s usually a good idea to review and update your analysis prior to making a settlement decision or prior to a mediation.
Where can I find a good example of an advanced decision tree?
Those are almost always privileged and highly confidential, but the one on page 2 of my paper “Interpreting a Decision Tree Analysis of a Lawsuit” is a good start. [Editor's note: This article is available here and a .pdf of that analysis is available on Settlement Perspectives by clicking here.]
And what is the mistake people most often make as their decision tree skills advance?
As users become more advanced, I often see them putting multiple causes of action in separate trees when they should be in one tree or, if they know they should be in one tree, linking the causes of action together incorrectly. Either of these mistakes will cause the calculation of case value to be wrong. I also sometimes see them making trees more complicated — more academic — than they should be, forgetting that an effective decision tree should mirror the more streamlined, simpler approach juries often take when presented with complicated cases.
If I have a working knowledge of litigation decision trees, do you have any tips on how to advance my skill set?
I link to 7 articles on my website, and continue to offer training by appointment. In addition, I work as a consultant to counsel and their clients on significant litigation matters.
Is there a software product out there you recommend?
I use TreeAge Pro exclusively. It was co-founded by Morris Raker, a Boston lawyer, after attending one of my seminars in the 1980s, and it can ship with a manual I wrote for litigators. [Editor's Note: Additional providers of decision analysis software are listed within the comments to our first post on decision tree analysis in litigation.]
Come back next week for more of our interview of Marc Victor. You’ll be glad you did.
From John DeGroote's Settlement Perspectives
Stephanie West Allen
One of my favorite books about the brain and how we take in information is by cognitive scientist Daniel Willingham. The book has a memorable title: Why Don't Students Like School. (In April, I blogged about the book before reading it and linked to a review in the Wall Street Journal.)
What does learning, the focus of the book, have to do with conflict resolution? The two are inextricably bound together. As I said in a post about a year and one-half ago:
Resolving conflict typically requires our learning much, including the parties' positions, interests, and stories. Growing as a conflict professional requires that we be learning about ourselves, too, both in the room and away from sessions. We are not the only ones who need to be learning: When parties are able to move towards resolution, they too have learned. Learning causes changes of both brain and mind. ...
Today I see a interview of Willingham about Why Don't Students Like School in USA Today. It holds a couple of tips that can be helpful to us here. First, for those still thinking we need to communicate, teach, and persuade by using the visual, auditory and kinesthetic learning styles:
Q: Ninety percent of people think they're either a visual, auditory or kinesthetic learner. What does that mean? And why do you say that they are wrong?
A: The idea is that people have different ways of learning the same material, or learning styles. A visual learner understands and remembers better by seeing, an auditory learner by hearing, and a kinesthetic learner by touching and manipulating. This idea has been tested repeatedly in the last 50 years and it doesn't work. People differ in their abilities and in their interests, but there is no evidence for differences in learning styles.
Second, here's advice on one excellent way to get information understood: Use stories! We already knew that (some posts at idealawg) but here's a reaffirmation by Willingham:
Stories draw us in (and are easy to remember) because they constantly pose small, solvable mental problems that invite us to interpret the action and predict what will happen next: Why is Scarlett marrying Charles when she doesn't love him? How will E.T. get home?
A bonus of storytelling: Stories hook our curiosity and thus have the potential to calm us down. Click to read about the relationship between curiosity and anxiety. (That's one of the reasons I include curiosity as the "C" in my CARVE Disputes Model™.)
Have you told a story today?
From Stephanie West Allen's blog on Neuroscience and conflict resolution.
Recently I had a conversation with someone in regards to Online Dispute Resolution (ODR) and how the person thought it had less human interaction compared to traditional ADR methods. I responded saying I actually think instead of viewing as ‘less’ or ‘more’, it is another choice for the parties. ODR is a new form of human interaction.
It reminds me of a teaching of impermanence- nothing stays the same regardless of how much you like or dislike it. ODR has arrived because people find it useful with the grwoing use of the internet and computers. It does not mean it is for everyone and it does not have to be. It is just like hybrids versions of ADR- new ones keep popping up as people's preferences change and evolve.
The variety of ADR services, now including ODR/iDR I think is reflective of the world we currently live in. Yes, we are ‘global citizens’ more now than ever but there is still that uniqueness that is present and should be acknowledged. Mediation via email or txt is str8 2 da pt 4 sum ppl & that is a good thing.
No idea what that means? No idea what the LOL image means? Embrace technology- Learn text talk here
For others, letting some machine automate some number that is supposed to make both sides happy works for them. For the stubborn and ancient dinosaurs, there is face to face mediation still. Of course the last comment is sarcastic but my point is look how ADR has evolved. It is an example of the impermanence I mentioned earlier. As times change, it is only natural that the way we as conflict resolvers look at conflict and then appropriately adjust to the parties needs. Let’s not forget, it is their process.
Self determination (recently discussed here) is a major reason people turn to ADR. People like having a say in how issues that directly affect them will be decided. Conflict could be broken down into three levels- substantive, psychological and procedural. It is in the third, procedural, where the new world of ODR has given the parties yet another choice on how to interact with the other party.
From Jeff Thompson's Enjoy Mediation Blog
By Kenneth Cloke
The Copenhagen Climate Change Conference -- What You Can Do
In December 2009, delegates from around the world will meet in Copenhagen, Denmark for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). Copenhagen will provide a critical opportunity for the world’s nations to reach a comprehensive agreement before the commitments set out in the Kyoto Protocol expire in 2012.
A recent report by the UN Intergovernmental Panel on Climate Change points to COP 15 as the focal point for decisive action by the world’s nations, in the effort to avoid a growing number of potentially disastrous environmental changes.
Yet a discussion of conflict prevention and resolution mechanisms is missing from the COP 15 Provisional Agenda, and the range and power of environmental mediation and similar techniques is not widely understood or agreed to by the parties who will be expected to sign the agreement that will replace the one adopted in Kyoto.
Article 14 of the 1992 UNFCCC negotiated in New York and Rio de Janeiro, which is reaffirmed in Article 19 of the Kyoto Protocol, states:
“… in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.”
However, the International Crisis Group, a nonpartisan conflict analysis advisory organization, has pointed out:
“[A] key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.”
It is clear to experienced conflict resolution professionals everywhere that conflict prevention and resolution mechanisms need to be a core part of the Copenhagen climate change negotiations and an indispensible element in international efforts to implement them afterwards. Without these mechanisms, global solutions will be much more difficult to negotiate and implement effectively and the time available to us to implement effective solutions is running out.
It is therefore incumbent on conflict resolution professionals to join together, travel to Copenhagen if possible, and if not, initiate a set of local and international dialogues on how conflict resolution methods can be used to effectively resolve climate change disputes.
What You Can Do
MBB has been provisionally accepted as an observer organization at the COP 15 meeting, and to my knowledge is the only mediation organization that will be present. We have a simple message: we want to convince the delegates that mediation is a viable option for resolving climate change disputes.
To achieve this goal, we will bring mediators from around the world to Copenhagen to inform delegates of the advantages of conflict resolution in resolving environmental and climate change issues, and encourage and support all parties in using it.
For those who are unable to attend the meeting, we will need justifications, explanatory materials and resources on environmental dispute resolution that can be passed out to delegates, and will need lots of local support. Here, for example, are ten things you can do:
- Come to Copenhagen and participate in the Mediation Seminar on December 10 and 11;
- Attend the COP 15 meeting as a MBB Observer and speak directly to national representatives who are attending the Conference;
- Email delegates and opinion leaders in your area and encourage them to support ADR;
- Help fund travel scholarships for mediators in countries affected by climate change who do not have the resources to come to Copenhagen;
- Contribute blogs to the Forum, a MBB website where people can discuss environmental issues;
- Contribute articles on environmental conflicts and mediation to “Conflictpedia;”
- Film brief interviews with knowledgeable people in your area on the value of mediating climate change issues to put on Youtube and the MBB webpage;
- Collect training materials, stories and case studies on environmental mediation, especially regarding climate change;
- Contribute names and contact information to a referral list of mediators around the world who are able to mediate environmental disputes;
- Form an MBB Chapter in your area and help organize dialogues on climate change and ways of resolving environmental conflicts.
Whether you can attend or not, Copenhagen represents a unique opportunity for mediators to contribute to solving global environmental problems. The time to act is now. Please join us and help save the planet.
From Settle It Now Negotiation Blog
Diane J. Levin
I’ve written often here about the fault lines in the ADR profession - the deep rifts dividing facilitative and evaluative mediators, the line in the sand between attorneys who mediate and professional mediators who are not lawyers. These dividing lines damage our collegiality and pose harm to our credibility as dispute resolution professionals; if we are unable to face and address our own differences, how can we be relied upon to assist others?
Other professions are of course no strangers to such schisms. In fact intractable conflict smolders now between lawyers, rooted not in doctrinal or political differences but in generational ones. Adrian Dayton, a lawyer who publishes an eponymous blog, discusses its impact in ”Candid exchange highlights a disconnect” in The Buffalo Law Journal.
After describing the rancorous arguing that has ensued between members of different generations of lawyers, Dayton, a Gen Y lawyer, observes:
What does that tell us? That there is a real conflict - and lack of understanding - on both sides. The biggest message I took away from it was that we’d better figure each other out - we’re going to be together for a while.
Dayton has thus signaled his willingness to bridge the generation gap. So what about his counterparts on the other side? No word yet. But if they need some assistance, the blogosphere’s full From Mediation Channel
Since March 17, 2009 (St. Patrick’s Day), my mediation office has gone green. After several months of working on conservation, I have several observations about being Green.
First, going green isn’t that hard. There are many small changes that you can make to save resources.
Second, Some green measures will cost you more than other traditional alternatives.
Third, getting your office staff to buy into the concept helps immensely to going green.
Fourth, there are small inconveniences that are easily overcome.
The following is my non-exclusive list of going green in mediation
- Fax confirmations are emailed (not faxed, because that is two pieces of paper per confirmation: one for you, one for the receiving end). If you must fax, then efax works best.
- Print briefs double sided. I had a mediation that had 480 pages of briefs. That is one ream of paper. Printing double sided saved a lot of paper.
- Provide filtered water in glasses instead of bottles. 1 out 5 plastic water bottles are recycled. Plus, there is a cost to each bottle.
- Use a program like Skype to allow non-essential participants to participate.
- Install ceiling fans or portable fans to circulate air to conserve on air conditioning.
- Use Ceramic coffee mugs instead of paper or Styrofoam cups.
- Purchase sugar in large quantities and use a sugar bowl.
- Tint your windows to save on heat coming in through the windows
- Change lightbulbs to fluerescent bulbs
- Have the lights on motion sensors
- Upgrade computers to energy efficient computers.
- Turn off computers at night and weekends.
- Use Recycle bins
Lessons Learned From Going Green
- Clients appreciate your effort to conserve resources
- When emailing confirmations, make sure to email to clients, and their administrative staff. This way you can avoid the possibility of a busy attorney missing the email (or going in spam), but the staff member will get it.
- Ask for reply emails confirming receipt.
- Having signs around explaining that you have gone green help.
- The office plants flourish with any extra water not used in the pitcher during mediation.
- You should make sure to periodically check on clients to make sure that they have enough water
The article How To Green Your Law Firm is also helpful in going green.
Let me know how your efforts to go green went.
From the Mediation Matters Blog of Steve Mehta.
For those who miss the monthly NYC-DR Roundtable Breakfast meetings sponsored by ACRGNY and John Jay College due to schedules (yes, we are all very busy conflict resolvers) or due to locations (I guess everyone can not be in New York City), I plan to write a recap of each gathering I attend. I hope you enjoy, and feedback is always welcome!
July 2nd's meeting featured Camilo Azcarate, manager of the World Bank’s Office of Mediation Services. I was fortunate enough to hear Camilo speak at the ABA Spring Conference on Dispute Resolution in April.
T the DRC-NY Roundtable, he spoke on Cultural Expectations in Mediation which included an overview of the role of his office and future plans.
The World Bank’s internal justice system is split in two parts- formal and informal methods. The informal side includes the Ombuds Office, the Office of Mediation Services and Peer Review Services.
The formal side has the ethics section, tribunal with judges and similar to court), and INT or internal investigations. INT handles complaints in regards to such issues as corruption.
To try and keep things simple, I will do the rest of the recap as bullet points (I hope you do not mind!)
* The World Bank can not be sued (in labor disputes, tax complaints, etc.) so it is vital to have a working internal justice system.
* His office receives approx. 70-120 cases per year
* It takes 3-5 weeks from intake to the completion of a mediation session
* Most sessions are 4hrs and/or 2 session in total
* 65% of staff works in HQ, 35% in country offices while 85% of cases come from HQ and 15% from the country offices
* 95% find mediation to be useful (from post mediation evaluations)
* Mediations are done with internal and external mediators
* Conflict Competencies- working with HR in a “big project’ to create a conflict competent organization.
* Outreach & Training- Training is the most effective way to reach out to employees.
* Expand Access to Country Offices. Currently mediation is offered via video conferencing or teleconference.
* Biggest liability of mediation programs is not getting enough cases. At the same time, remember to not change the mediation process to fix it.
* Culture was a main part of the presentation
* There are more similarities than differences across cultures.
* Individuals belong to several cultures simultaneously.
* Individual behaviors are not necessarily determined by culture.
* An example given- in Columbia for most, their version of saying no to someone is by not saying yes which could create confusion in Americans who would then think, “Hey, I think there is a chance.”
* Diplomacy styles, like mentioned above are valued more in country offices compared to HQ (as per their research).
* Lots of references to Hofstedes Dimensions- Indivudualism, Power Distance, Masculinity, Uncertainty Avoidance and Time. The first two were gone into detail.
* Individualism- High assertiveness compared to low. Countries like USA & Australia are high, while China and West Africa are low.
* High- opinions, self interest and conflict are good (low is the opposite).
Power Distance- Degree in which less powerful members of the group expect unequal distribution of power. Confused? Read more on it [here]
Comments During Q&A
* We adapt regardless our personal beliefs.
* Confidentiality- don’t offer more than you can promise!
* In mediation, there is confidentiality NOT amnesia!
* His office no longer does conflict coaching as 1) that is more for the ombuds office and 2) it was seen as undermining actual mediations.
* As the administrator of the office, he has to keep certain standards, mainly ensuring mediators stick to the model of empowering the parties in used in all locations regardless of the cultural expectations- for example, parties stating, “we want evaluation!”
* To add to the above point, it was stated the model of empowering the parties must also be done while somehow also adopting to the cultures of the country office.
Quote of the Day
Camilo compared hybrid processes such as Med-Arb to having a nice, lovely salad with delicious dressing on it....then adding ketchup on top! Brilliant Camilo, brilliant!
Someone in the audience remarked this gem in regards to engagement/dialogue, “Connection before content.”
From my not-scientific-at-all count, there were approximately 70 people at today’s gathering which was fantastic. As usual, a consistent, positive result to attending the monthly gathering is to see people I know as well as meeting new people. With such a large group showing up today, it was wonderful to see the ADR community in New York City thriving.
From Jeff Thompson's Enjoy Mediation Blog