When John Lande gave me a preview of his new book (written with Michaela Keet and Heather Heavin) Litigation Interest and Risk Assessment, I read it in one gulp. It was everything they never taught me in law school, and many of the mistakes I’ve seen lawyers make while counseling their clients in mediation, all rolled into one.
The book explains how lawyers, mediators, and settlement conference judges can help parties can use litigation interest and risk assessment (LIRAs) to make good decisions in litigation.
At the front end of litigation, parties think of the benefits they are likely to receive, and they don’t consider the substantial risks and costs involved in the process. While some of this has to do with confirmation bias and lawyers upselling the benefits, a lot of it has to do with lawyers not having good practices for estimating costs and risks and discussing them with clients. Trust me: There is no ‘costs and risks’ course in law school (although, lately, ‘discussing things with clients’ has been finally making its way into the curriculum) in the process.
Predicting risks and costs precisely is complex. Predicting risks and costs roughly, though, is simpler – now that this book is out. The book provides a systematic and simple approach for calculating the potential costs and risks of litigation, that will allow lawyers and clients to make decision with far less reliance on lawyer guestimates. This not only advises the client better, it also takes pressure off of lawyers.
The system is also helpful for mediators, or settlement conference judges. Working with attorneys and clients in the middle of the litigation process, they can help them conduct an up-to-date LIRA to inform their decisions about the future.