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

Risk and Rigor offers practical guidance to lawyers, mediators, and clients on using decision trees to more rigorously think through possible legal paths, risks, and consequences for more strategic litigation choices and settlement valuation. For those entirely unfamiliar with decision tree analysis, or litigation risk analysis, the first few chapters provide grounding in its fundamental concepts and logic. They guide the reader through a carefully sequenced set of case examples and offer links to videos that demonstrate how to hand draw and calculate simple decision trees. Risk and Rigor then goes far beyond the basics, discussing how to think about structuring decision trees for complex cases—when simplification distorts reality and when too much complexity makes the tree less comprehensible and less meaningful. Drawing upon the fields of psychology and communication as well as expert elicitation and probability studies, it provides advice for lawyers, mediators, and clients on arriving at thoughtful and robust estimates of probabilities, damages exposure, and other tangible and intangible costs in the litigation context. There are abundant not-so-hypothetical case examples and their decision trees, as well as tips on best practices and mistakes to avoid when structuring a tree and estimating its numbers and percentages. Recognizing that rigor alone is far from enough, the 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. Offering examples of how to use the language and 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. Shortly after the book’s publication, readers will be able to find RiskandRigor.com, a website with additional resources related to risk assessment, cost estimation, case valuation, and decision trees for legal practice.
About the AuthorMarjorie 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, and mediator panelists, and other 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) and has published many articles, chapters, and simulations, and videos in her field.