Litigation risk analysis

Last updated

SettleIndex

Litigation risk analysis is a subset of decision tree analysis and is the application of decision tree analysis to litigation and lawsuits. It operates based on the idea that prosecutors do not prosecute all cases even if they have merit due to several factors such as economic considerations. [1] This method can reveal the odds of winning a case or financial loss that a litigation would incur, especially if it is too great for the kind of offence involved [1] or there is an imbalance between effort and need. [2] With this tool, a prosecutor is in a better position to decide whether to pursue a case or offer a plea bargain if this is permitted.

Contents

Background

Litigation risk analysis is a growing[ when? ] practice by lawyers, mediators, and other alternative dispute resolution (ADR) professionals.[ citation needed ] When applied in mediation settings, litigation risk analysis is used to determine litigated best alternative to negotiated agreement (BATNA) and worst alternative to negotiated agreement (WATNA) scenarios based upon the probabilities and possible outcomes of continuing to litigate the case rather than settle. [3] The process of performing a litigation risk analysis by mediators has been hampered by the need for mediators to physically draw out the decision tree and perform calculations to arrive at an expected value (EV). However, there have been calls for more mediators to adopt the practice of performing such an analysis. [4] [5] [6] [7] [8] [9]

Process

There are several models of litigation risk analysis. Many prosecutors, for instance, are increasingly turning to computer-assisted approaches such as decision-support systems, which are employed when conducting cost/benefits analysis and the evaluation of cost, risks of trial outcomes, legal fee arrangements, and so on. [1] All these, however, share the goal of breaking down the complex legal proceeding into its basic parts and quantifying the risks and uncertainties entailed. [10] A prosecutor can use this type of analysis when evaluating the type or the size of the case. It is employed for more complex outcomes such as case assessment, strategy decisions, and settlement analysis. [10]

Related Research Articles

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences. They do this by lowering tensions, improving communication, interpreting issues, encouraging parties to explore potential solvents and assisting parties in finding a mutually acceptable outcome.

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution.

<span class="mw-page-title-main">Mediation</span> A Dispute resolution with assistance of a moderator

Mediation is a structured, interactive process where an impartial third party neutrally assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the defendant. A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

<span class="mw-page-title-main">Due diligence</span> Standard of care before entering into a contract with another party

Due diligence is the investigation or exercise of care that a reasonable business or person is normally expected to take before entering into an agreement or contract with another party or an act with a certain standard of care.

Online dispute resolution (ODR) is a form of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art, often through hardball legal tactics. Patent trolls often do not manufacture products or supply services based upon the patents in question. However, some entities, which do not practice their asserted patent, may not be considered "patent trolls", when they license their patented technologies on reasonable terms in advance.

<span class="mw-page-title-main">Arbitration</span> Method of dispute resolution

Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding.

The terms legal case management (LCM), legal management system (LMS), matter management or legal project management refer to a subset of law practice management and cover a range of approaches and technologies used by law firms and courts to leverage knowledge and methodologies for managing the life cycle of a case or matter more effectively. Generally, the terms refer to the sophisticated information management and workflow practices that are tailored to meet the legal field's specific needs and requirements.

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.

The Arbitration Roundtable of Toronto is made up of several litigators, academics, arbitrators, and mediators from the Greater Toronto Area. The group promotes arbitration as an alternative method of conflict resolution over litigation, especially in commercial suits. Members include commercial litigators from Toronto law firms including some of the Seven Sisters of Bay Street. Each member has experience and interest in promoting commercial Arbitration. The group dedicates its time to encouraging this form of Dispute resolution through seminars, papers, and talks.

NAM is a provider of Alternative Dispute Resolution (ADR) services, including Arbitration and Mediation NAM provides services to business entities and individuals who seek to resolve their disputes or conflicts outside of the court system. The company maintains rosters of neutrals in all 50 states, Puerto Rico, and major cities around the world.

Arthur Montraville Monty Ahalt is an American jurist, and a lifelong resident of Maryland. He served as Circuit Court Judge for Prince George's County, and is an internationally recognized advocate of technological solutions for the judicial and legal community. Judge Ahalt has pioneered advances in case management software and online dispute resolution, and is the founder and chief executive officer of VirtualCourthouse.com.

Lawyer-supported mediation is a "non-adversarial method of alternative dispute resolution (ADR) to resolves disputes, such as to settle family issues at a time of divorce or separation, including child support, custody issues and division of property".

eQuibbly

eQuibbly is an online dispute resolution (ODR), offering individuals and companies in the U.S. Canada, and other countries that are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This is a private and legally binding alternative to pursuing litigation in court. eQuibbly was an Online Dispute Resolution service in North America focused exclusively on online arbitration. It ceased operations in 2016.

Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the verdict, or the damages or sentence awarded in the case. Alternatively, in the case of impact litigation the goal may be more far-reaching, such as setting legal precedent, affecting consumer-safety standards, or reshaping the public's perception of a societal issue. Broader goals and more challenging cases require a strategist with a greater understanding of, and facility with, the tools of litigation strategy.

<span class="mw-page-title-main">Forrest S. Mosten</span> American lawyer

Forrest "Woody" Steven Mosten is an American lawyer and author. Mosten has been practicing law in Los Angeles since 1972, additionally serves clients in San Diego and Orange County, and accepts mediation engagement throughout the world online. A former litigator, he is a full-time peacemaker and never takes a case to court, often working in an interdisciplinary team with a triage approach. Mosten has spoken at conferences and trains lawyers and litigators, and he is an adjunct professor at the UCLA School of Law, where he has been teaching since 2002.

Claude R. Thomson was a Canadian lawyer in Toronto, Ontario. He was a well-known courtroom lawyer, and also a pioneer of alternative dispute resolution in Canada, including mediation and arbitration. He served as the president of the Canadian Bar Association and the International Bar Association.

The Alternative Dispute Resolution Institute of Alberta (ADRIA) is a non-profit organization with offices in Edmonton, Alberta, that provides Alternative Dispute Resolution (ADR) services to its members and the public. It was originally founded in 1982, encapsulated within the Alberta Arbitration and Mediation Society (AAMS), but the two organizations split in 2012 so that AAMS could continue to exist with charitable status, while ADRIA emerged and carried on the membership based non-profit work. ADRIA's mandate is to promote the use of ADR while offering education and training to individuals across Alberta and the Northwest Territories in negotiation, mediation, arbitration, and restorative practices. The organization has been used as a source for ADR information, resources and expertise in a range of both private and government matters. This now includes having a key role in the annual Conflict Resolution Day, hosted on the third Thursday of every October since 2007, which seeks to promote awareness for the utility of ADR practices. In 2013 ADRIA helped provide input for the review of the Condominium Property Act with regards to dispute resolution issues.

The ADR Institute of Canada (ADRIC), is a non-profit organization that offers alternative dispute resolution services to its members and the public across the country. It is one of the leading authorities on ADR in Canada, offering highly respected professional designations for both mediation and arbitration, with plans for a mediation and arbitration (Med-Arb) designation in the works. ADRIC has also created an established set of ADR rules and codes, outlining the principles by which its affiliated ADR practitioners commit themselves to following. Beyond promoting ADR and networking and training individuals in ADR practices, ADRIC presides as the national body of the seven regional affiliate bodies of the ADR Institutes in Canada:

References

  1. 1 2 3 Nissan, Ephraim (2012). Computer Applications for Handling Legal Evidence, Police Investigation and Case Argumentation. Dordrecht: Springer. p. 252. ISBN   978-90-481-8989-2.
  2. ↑ Berenbach, Brian; Paulish, Daniel; Kazmeier, Juergen; Rudorfer, Arnold (2009). Software & Systems Requirements Engineering: In Practice. New York: McGraw Hill Professional. p. 15. ISBN   978-0-07-160548-9.
  3. ↑ "Epublications@Bond repository content relocations". Bond University Library. Retrieved 7 February 2019.
  4. ↑ Risk Analysis in Mediation by Geoff Sharp.
  5. ↑ Victor, Marc B. (1990), Litigation Risk Analysis™ and ADR (PDF)
  6. ↑ "Risk Evaluation in Intellectual Property Litigation" (PDF).
  7. ↑ Poltorak, Alexander I.; Lerner, Paul J. (2002). Essentials of Intellectual Property . John Wiley & Sons. p.  134. ISBN   978-0-471-27329-5.
  8. ↑ Victor, Marc B. (2002), Litigation Risk Analysis (PDF)
  9. ↑ Marks, Richard D. (2002), Essentials of HIPAA Security Litigation Risk Planning (PDF)
  10. 1 2 Poltorak, Alexander; Lerner, Paul J. (May 2001). "Introducing Litigation Risk Analysis". Managing Intellectual Property . Retrieved 2018-07-25.


This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.