Decision Tree Analysis in Litigation The Basic.DOCXVIP

Decision Tree Analysis in Litigation: The BasicsA sample Decision Tree, available in .pdf format here.I remember my first mediation decision tree. It was late in the day, just before impasse, and our mediator was desperate to show my client and me that we had misvalued the case.? As he sketched it for us the approach made sense, but that was no time to pick up a new technique.? His effort ended no different than most attempts to learn about decision trees on the fly — with a confused client, a frustrated mediator and a lawyer about to change the subject.Fifteen years later I know the value of a decision tree and, just as important, how to really use one — in connection with settlement discussions and as a part of an Early Case Assessment before settlement talks begin. Admittedly they take a little effort and some practice, but whether you’re a lawyer or a mediator or their client, you’ll see one soon. Knowing what a decision tree is and how to diagram yours will be worth the investment.What Is a Decision Tree Anyway?Often used in the business world, decision trees are “tree-shaped models of [a] decision to be made and the uncertainties it encompasses,” according to Dwight Golann in Mediating Legal Disputes. A decision tree “shows the various possible outcomes in a lawsuit and helps the parties evaluate the costs, risks and benefits of each outcome,” as Daniel Klein discusses more fully in his article Decision Trees The Arboretum.Stated simply, the decision tree is a tool used to value the multiple financial outcomes possible in any litigation — whether summary judgment is granted, the plaintiff “wins” a small amount, or something else happens.Just as important, decision trees arrive at these values by translating the subjective judgment of trial counsel into monetary terms — as Patrick Lamb and Ron Friedmann and David Post have pointed out before, your trial lawyer’s interpretation of “a good chance of winning” might be very, very different from yours. A decision t