What’s a "likely" legal outcome? Examining lawyer’s use of probability language
Consider the following: a client asks a lawyer to assess the client’s chances of winning in a lawsuit. After doing some research, the lawyer concludes that the client has a strong case. If she had to wager, she’d say the client has about a 2/3 probability of prevailing. The next day, the client calls and asks, “So, what are our chances?” What should the lawyer say to convey that likelihood assessment?
If she follows typical practice and traditional legal writing guidance, she’ll say something along the lines of, “You’ll likely win” and then explain her reasoning. She may think that she’s accurately conveyed her professional judgment. But how will the client interpret their chances of success?
While commonly used in legal writing, qualitative “verbal probabilities”—words like “probably,” “likely,” or “almost certain”—have an inherent drawback: their meaning can vary widely based on who’s using them and on when, where, and how they’re used. This, of course, creates the possibility that a client might interpret a verbal probability very differently than the lawyer intended. As a result, the client could over- or underestimate their chances of success when deciding on a course of action—perhaps leading the client to settle when they should fight or vice versa.