Uncertainty

One of my jobs as a lawyer is to explain the pros and cons of crucial, expensive, and often emotional decisions to employers who have been accused of some wrongful conduct (usually on wage and hour, workers' comp discrimination, other discrimination, wrongful termination, retaliation, or union-related matters). Always, the advise must be informed by the inherent uncertainty in litigation.

When asked for advice on the art of legal practice, I usually tell students to divorce emotion from the process and apply the law to the facts. Even under those circumstances, the no legal issue -- however frivolous -- is 100% certain. How can this be? The answer is manifold: unscrupulous litigants will "bend" facts to suit their needs, even in the absence of such "bending" some facts lend themselves to  interpretation (e.g., an innocent comment or gesture can show discriminatory animus if repeated or not properly explained), juries are notoriously emotional bodies, and the court itself is not immune from a policy-based view of the facts.

Taking all that into account, the advice proceeds along the lines of, a discussion of the facts, some application of facts to the law, an explanation of the opponent's best case, an explanation of the process of trial (including discovery, pretrial motions, trial filings, interactions in court, the trial itself, and post-trial filings), followed by a range of budgets for the litigation, including best- and worst-case outcomes.

But in the end, the question comes down to this: will the employer prevail at trial? And the answer to that question can never be "yes." On the other hand, rarely is the answer "no." And this is where the discussion of uncertainty begins. At trial, the best, most logically sound argument can fail for three reasons, two legal and one human: credibility, policy, and emotion.

The spectrum runs from the total uncertainty of trial to the total certainty of the early payment of the opponent's demand. In the end, few cases proceed on either of those paths. Instead, nearly all cases resolve through some sort of informal settlement of the issues or alternative dispute resolution or "ADR." These provide a way for the parties to keep some degree of control in the process, and craft an outcome between them, rather than letting the unknown (but neutral) entities of the court and juries decide.

In the end, the client must make that difficult choice: pay some amount up front, or proceed through litigation and let the court decide. I suspect uncertainty played this same key role in memorium, and suspect it will continue play a key role in perpetuum.