Outcome Analysis: Learning from the Adversarial Process

What Can be Won by Avoiding Litigation?

By using the litigation-derived adversarial process as a template to educate and a resource for better decision-making, writes Paul Leiman, owners may well find that litigation itself can be avoided. Find out how.

The 17th century French philosopher, Jean de la Bruyere, is famously quoted as saying: “Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property.” And, for anyone who has been involved in litigation as a party (or perhaps even a witness), Bruyere’s admonitory words most likely ring true. Nonetheless, even as an object of scorn and dislike, the lawsuit and the courtroom drama have become fixtures in our litigious modern culture.

We seem to take litigation at face value as a source of popular entertainment or a device to gain leverage in a business deal or as a substitute for good faith negotiation. Stepping back from what we are accustomed to for a moment, we should raise the question: Are we missing something here? Put another way: Are the more serious lessons of litigation obscured by its familiar roles?

One answer to that question is that most frequently we view litigation in far too narrow an attitude. In fact, it seems obvious that one of litigation’s most important teachings should be its cautionary role. By using the litigation-derived adversarial process as a template to educate and a resource for better decision-making, it may well be that litigation itself can be avoided. Using effective litigation role play in an adversarial model, the outcome of avoiding litigation may be one of the most significant and positive effects.

Adversarial Process: More Than an Outcome Dichotomy

Ordinarily, there are two consequences that are associated with the outcome of litigation: (1) the result, and (2) the process. As for result, the parties are likely to be most interested in the end result of the lawsuit, namely, who won or lost and what relief was granted. On the other hand, given the rather public nature of lawsuits, we tend to scan the process (or due process), looking to see generally if justice has been served. No doubt, these are important concepts which offer significant benefits, not least of which are: (1) a socially appropriate method of dispute resolution, and, (2) a recapitulation of our sense of fairness and that we are a law-based society.

In addition to dispute resolution and fairness, there are other incidental, but striking lessons that ought to be learned as a consequence of the result-process dichotomy. Among these is deterrent effect—the idea that the behavior of others can be altered by their concern that the negative, end result suffered by a lawsuit party is a potential adverse consequence that could happen to them. Examples of this include punitive damage awards in products liability cases, and the liability that might yet occur in connection with the Financial Crisis of 2008. But, absent genuine accountability, this negative lesson can become attenuated, potentially creating a feedback loop that undermines the goal of fairness. However, assuming that accountability processes are in place, there should be ample incentive to avoid litigation and its attendant uncertainties.

A Litigation-based Strategy

Rather than being a first option, litigation and the adversarial model should be viewed as an incentive for developing a proactive strategy for sound decision-making that uses litigation’s adversarial protocol as a way of staying out of court. In other words, the negative, and often very expensive, ex post facto lessons derived from the litigation experience might well be avoided if leaders, professionals, and managers are willing to use the adversarial process and mock litigation role play to actively examine potential outcomes. The fact that there are other points of view, and the idea that there is more than one side to a story, was cogently expressed by the well-known English essayist and critic Charles Lamb (1775-1834), who said: “He is no lawyer who cannot take two sides.”

Using a litigation-based strategy and model as a resource to discern and test viable and sustainable plans is a positive resource for litigation-based outcome analysis. The litigation-based model, a paradigm designed to optimize positive outcomes, can be especially effective as a template to achieve client-tailored strategic objectives. To help avoid litigation in the first instance, decision-makers should be actively engaged ahead of the curve with challenges on litigation sensitive Impact Factors, e.g., critical facts and potential risks, perceived financial integrity issues, high-profile legal dilemmas, critical, fact-based challenges to recordkeeping management and documentation discipline.

A litigation-based strategy, by which decision-makers as potential parties and witnesses are able to see, understand and practice their choices in the context of a mock adversarial proceeding, offers a template for examining choices in the near term, and predicting and handling foreseeable outcomes.

Guiding us from the latter half of the 19th century, Abraham Lincoln—trial lawyer and 16^th president—admonished: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

The Expert Witness Analogy

Analogous to the litigation-based preparation required for decision makers, it is absolutely essential that an expert witness actively prepare thoroughly in order to optimize the likelihood of testifying persuasively and effectively in deposition or court. The strategic positive goals and the model that are employed to avoid litigation are “cut from the same cloth” as the elements required for a successful expert witness: (1) engage and assist the trier of fact; (2) be credible; and, (3) be believable. Moreover, although the number of “moving parts” that go into providing a successful expert opinion might be fewer than go into litigation-based outcome analysis, predicting and handling foreseeable outcomes can be equally significant.

Preliminary Assessment of Expert Testimony 

Lawsuits are adversarial proceedings that are most typically premised on versions of the facts that have a common origin. However, like twins, having a shared beginning by no means assures that the fact sets will be ultimately alike. Moreover, even if the facts were somehow congruent objectively, there is no reason to think that putting the facts to the test in a critical analysis would result in consistent outcomes.

The most likely reason for this is that perception filters information for each of us, such that we all see the world slightly differently. In the classic film Rashomon (1950) by Japanese director Akira Kurosawa, the subjectivity of each witness’s perception of a terrible crime shaped their recollection of the events. How recollection is shaped is a phenomenon well documented in psychology, especially with regard to primacy and recency. With regard to primacy, it has been found that “early items in a list have a memory advantage,” and “more recently heard information is recalled more readily.”[1]

The Federal Rules of Evidence (“FRE”) provide that when the court determines that it would assist the trier of fact to understand the significance of the evidence or determining a fact in issue, the court may permit expert testimony. However, this decision might seem more straightforward than it actually is.

A court’s assessment with regard to permitting expert witness testimony and then the trier of fact’s measure of its reliability, credibility, and believability are processes that bear a resemblance to the kind of Outcome Analysis used to actually avoid litigation by using effective litigation role play in an adversarial model. Thus, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court provided a paradigm for trial judges in federal cases faced with a proffer of expert testimony to undertake at the outset, “…whether a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue.” The court further stated that, “We are confident that federal judges possess the capacity to undertake this review.”[2]

Although the outcome testing for expert testimony and opinion occur during the course of the trial rather than as a by-product of avoiding the lawsuit, the principles upon which the adversarial process are founded are the same. Thus, the Supreme Court’s confidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., about “the capabilities of the jury and of the adversary system generally,”[3]  were bolstered by the prospects of “…[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.[4]

Conclusion 

The adversarial process built into litigation presents a useful paradigm and resource. Like the preliminary assessment process regarding expert testimony espoused in the Daubert case, litigation’s adversarial process can serve as an analytical decision-making tool. In this regard, employing a litigation-based strategy that uses the adversarial model and mock litigation role play to optimize positive outcomes can help avoid the substantial costs of litigation.

Paul G. Leiman, an attorney and principal of KeyWitness Consulting, works with financial institution associations, corporations, and law firms on matters including litigation services, expert witness preparation, and regulatory and ethical governance.  Mr. Leiman can be reached at (301) 469-6014 or via e-mail at paulleiman@jhu.edu.