Risk & Rigor: A Lawyer's Guide to Decision Trees for Assessing Cases and Advising Clients

Should you sue, or not? Accept their settlement offer, or turn it down?

How can you be sure that the advice you give your clients to settle or litigate meets their needs?

How can you help parties calculate how the choice to settle or continue a lawsuit compares to other ways that time, money, talent, and energy could be spent?

This book provides a systematic approach to answering these questions, helpful for individual parties, lawyers, and mediators.

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For many individuals, the response to “should I sue or settle?” is to ask an attorney or a mediator. However, these professionals rarely apply a rigorous system for such decisions taking the full range of clients' interests into account. Simply, such systematic thinking is not part of a typical legal education or mediation training.

Risk and Rigor fills this gap. Introducing the method of using decision trees for these decisions, it offers practical guidance to lawyers, mediators, and clients for systematically thinking through possible legal paths, risks, and consequences for more strategic litigation choices and settlement valuation.

For readers unfamiliar with decision tree analysis, or litigation risk analysis, the first few chapters introduce its fundamental concepts, guiding the reader through a carefully sequenced set of case examples and linking to videos demonstrating how to hand-draw and calculate simple decision trees.

Risk and Rigor then explains how to structure decision trees for complex cases—when simplification distorts reality yet too much complexity makes the tree less comprehensible and meaningful. Drawing upon the fields of psychology, communication, expert elicitation. and probability studies, it provides advice for lawyers, mediators, and clients on calculating thoughtful and robust estimates of probabilities, damages exposure, and other tangible and intangible costs of litigation.

The book includes abundant not-so-hypothetical case examples and their decision trees, as well as best practices for structuring a tree and estimating its numbers and percentages (readers can find further resources at RiskandRigor.com). It book explains how to collaboratively build and draw insights from decision trees in ways that work with emotion, psychology, and communication for client counseling, negotiation, and mediation. In offering examples of how to use the language and the visual impact of decision trees in dialog with clients and opposing counsel, Risk and Rigor is an invaluable resource for lawyers and mediators seeking to facilitate reasoned settlement valuation while maintaining strong client relationships.

About the Author

Marjorie Corman Aaron is a Professor of Practice and Director of the Center for Practice at the University of Cincinnati College of Law where she teaches negotiation, client counseling, mediation, trial practice, and decision analysis. Professor Aaron has designed and taught workshops on these topics for law firms, law departments, federal court judges, magistrates, mediator panelists, and other groups and organizations in the U.S. and internationally. She is an active mediator, arbitrator, and dispute resolution consultant, and has used decision tree analysis in her practice for more than thirty years.

Professor Aaron was formerly Executive Director of the Program on Negotiation at Harvard Law School, and a Vice President and mediator at Endispute, Inc. (now JAMS). A graduate of Princeton University and Harvard Law School, she first practiced as a litigator in Massachusetts at Goodwin Proctor and as an assistant district attorney.

Professor Aaron is also the author of Client Science: Advice for Lawyers on Counseling Clients Through Bad News and Other Legal Realities (Oxford University Press, 2012) as well as many articles, chapters, and simulations in her field.