Decision Tree Analysis – “Valuing Your Case”

How lawyers and their clients will benefit from this seminar

Most parties to a lawsuit have never filed a civil case nor have they taken one through a trial to verdict. They often arrive at mediation unfamiliar with how courts work and how a trial unfolds. They don’t understand everything that their lawyers have told them about the strengths and weaknesses of their case, and they don’t always agree with their lawyers about how their case will turn out nor what their damages will be when a verdict is rendered. If the attorney and client are not on the same page about case value, then proposals to settle the suit will be hard to make during negotiations.

When attorneys and clients disagree about case value, it’s often helpful for lawyers ask the mediator for help. Mediation is another opportunity for the attorney to have case analysis discussions with their clients—only this time, with the help of a mediator. This seminar will encourage lawyers to utilize the mediator’s skill and experience in facilitating productive conversations. It’s often said that the mediator’s job is to help people have difficult conversations together—-and that holds true particularly when those people are attorneys and their clients.

This CLE is not just about the type of case analysis that is designed to tell your client whether they have a case or not. It’s about how to place a value on the case given the pros and cons associated with the evidence. It’s about how to conduct a form of risk analysis (in this case, a decision tree analysis) that will give you and your client a look at the probable monetary value of the case. It’s about arriving at a depreciated value of your client’s case, given the risks of proof that you and your client have identified.

Based on your conclusions about the risks of winning and losing, or risks of high or low dollar verdicts, you and your clients will be able to decide what the probable outcome of the case will be and what your bargaining range should be. Those discussions will have a positive impact on your subsequent negotiations. However, failure to reach a common understanding of the value of your case will result in unrealistic values that usually lead to difficult negotiations and even a premature impasse.

Once the connection is made between evidence, risk, and value, however, the decisions about making monetary proposals becomes easier and the negotiations more productive. So, helping people quantify risk and reach realistic proposals is an important tool in the litigator’s and a mediator’s toolbox.

Scheduling for this course will be announced shortly. Notify us of your interest and preferred location for the course at 919-967-6611 or

How mediators will benefit from this seminar

This seminar is also about how mediators can benefit from learning about calculating risk. Decision Tree Analysis was derived from a commonly used tool in business schools called a Weighted Probability Analysis. Both are statistical models used in business, medicine, manufacturing, and law to calculate the probable outcome of a course of action, whether that course of action is contemplated by a principal investigator in a chemical research project or, in our case, the outcome of a litigated case which is now the subject of a mediation.

Decision Tree Analysis is a tool that is best used by a mediator in a private session with an attorney and client. There, the mediator uses the structure of Decision Tree Analysis to discuss the important topic of risk and to identify risk throughout the case. Once the clients change their perception of risk as a result of those conversations, movement from position to position during the negotiation will become much easier.

There may be points in a case where its value will change depending upon a ruling that a court makes. We call these points decision nodes. A motion for summary judgment is often one of those nodes. Value at those points changes for the parties depending on how the judge rules on the motion. If the motion is granted for the defendant, the value of the plaintiff’s cause of action immediately is reduced to zero.

In Decision Tree Analysis, the party and attorney identify the many decision nodes throughout the case. At each node, there are two possible outcomes, the binary yes or no. The probability that “yes” will prevail is discussed and assigned a probability percentage; and the same is calculated for the result of “no”. The attorney and the client assign those probabilities, not the mediator. This process of assigning probabilities continues with the other decision nodes throughout the case.

Because the assessment of percentages is assigned by the parties themselves, the parties must be careful not to let favorable bias to creep into the model. There are several safeguards that a mediator or attorney can use to make the assignment of probabilities more neutral. The rest of the probability analysis is pure math.

Multiplication at each risk node is simple to calculate with a simple handheld calculator. Dollar values are arrived at as the result of math. There is little to argue about. And at the end, the ultimate value of the case will be determined by simple addition.

This methodical calculation of value will change people’s former perceptions about value and proposals in a large percent of cases. It’s a powerful tool. So, come learn how to use Decision Tree Analysis to help your clients deal with the risks in their cases.

Scheduling for this course will be announced shortly. Notify us of your interest and preferred location for the course at 919-967-6611 or