This post is part of "Damn Good Advice from TBD2," a series of 2 posts. You can see all posts in the series.

At TBD2, the second edition of TBD Law, attendees were asked to share an idea, a lesson they’d learned, a best practice they had, or just some great advice. Here are some of their answers.

Percentages

“If a lawyer ever gives a client an estimate or percentage of outcome, the client should run like their hair is on fire.

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2 responses to “Damn Good Advice for Lawyers, from TBD Law, Part 1 of 2”

  1. Alex says:

    I really like these lessons from the lawyers. It gives a sense of the crowd. One stuck out to me though.

    “If a lawyer ever gives a client an estimate or percentage of outcome, the client should run like their hair is on fire.”

    I get that I am in the minority on this opinion, but I’ve never heard an explanation for this opinion that made sense to me.

    We are in the business of giving advice. We advise people on likely outcomes. We were all taught BPL in law school, which is the net present value calculation made complicated by words. As counselors, we make predictions and say things like “if pursue X strategy, we will have [some chance] of success at obtaining Y outcome.”

    We all have to make these statements, right? If we put a percentage on it, what’s the problem? If the concern is that we expose ourselves to malpractice risk by putting things in numbers, then aren’t statements like success is “likely” or “more likely than not” or “remote” or whatever equally problematic? I don’t see how those statements are that different from 70% or 50-50 or 20%.

    I do see how giving clients a number gives them a false sense of precision. That’s a real problem.

    Also, if you tell a client they have a 70% chance of winning and then they actually lose, it’s not obvious that you were wrong in the first instance. They still had a 30% chance of losing. And if you wanted to be extra CYA, you could say “I think you have a 70% chance of winning and I am 70% confident (Bayseian statistics now) in that belief.”

    I say things like “based on what I know now, my expectation is …” when I want to CYA, which I do all the time. But I don’t avoid making estimates because my clients ask me to make estimates, and I take the time to educate them about the limits of the estimate and my reasons for it.

    I don’t think that refusing to put a number on it somehow makes the advice better for the client or the lawyer.

    My guess is that other states may have ethics opinions on this issue. So far as I know, mine doesn’t.

    • Tripp Watson says:

      I’m in agreement here. I give statistics and estimates all the time (always with big asterisks everywhere and fine print). As a rule (and I tell them it’s the rule), I never go south of 30% or north of 70%, because we all have had that “One Judge.”

      I view part of my job as educating people which option is the best, and they need to understand that, if they want to thread the needle, it needs to be worth the risk.

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