Hello Anna! You have been Eperoto’s trusted advisor in the field of decision analysis since the earliest days. How did this area become one of your specialties?
Hi! Yeah, that’s right, I’ve had the great pleasure of working with you right from the start.
I was introduced to the field of decision analysis ten years ago when I did a master of law degree at Columbia Law School in New York, specialising in dispute resolution, especially negotiation and mediation.
I’m currently a practising lawyer but at that time I was on leave from my position as assistant judge in Sweden. We were instructed to use decision analysis in a negotiation class and I could directly see the potential benefits of using decision analysis in the court when assisting disputing parties with evaluating settlement options and facilitating settlement negotiations. Decision analysis allows for a more structured way of thinking about decisions. In my experience, it can really help to improve decision making when you’re faced to choose between options that all have uncertain outcomes.
When discussing decision analysis some lawyers argue that numbers (percentages) can’t accurately describe the complexity of legal disputes. What are your thoughts around this?
Well, it’s true in the sense that evaluating legal disputes is not an exact science and the numbers provided are assessments. But making risk and probability assessments to help clients make informed choices amidst many uncertainties is a core task of the work that we as lawyers do. In that sense I think that numbers are a clearer way of communicating assessments than using words.
As for complexity, I think decision analysis software is the perfect example of how numbers can and must be used to adequately take into account the full complexity of the case and all its different possible scenarios. In addition, it does so in a manner that is easy to overview and apply in decision making for both lawyers and non-lawyers.
Sometimes lawyers working in law firms raise concerns and fears that a client may get overly attached to a figure and then get disappointed if an estimate change as more information about a dispute is unearthed. How would you as a lawyer deal with that?
I know that this is being raised as a concern. For me, it is a matter of communicating clearly. If I say for example that it is “likely” that the client will win on the merits, for some that will mean a 40 % chance of winning while others will perceive it as a 70 % chance of being successful. That is obviously a big difference and by using numbers you can avoid misunderstandings regarding the message communicated. It is of course important to explain to clients the insecurities involved in an assessment and that it may change depending on how a dispute or situation evolves. In my experience though this is not a practical problem as clients are usually well aware of this reality.
Do you have any example you can talk about where you used decision analysis? If so, in what setting, and what were the reactions from the involved parties?
I have used it both as a mediator and as counsel in disputes. In one case acting as lawyer for a larger corporation in a contractual dispute, I used decision analysis to prepare for settlement negotiations. We used a decision tree analysis and included also external financial consequences that the client would enjoy or suffer in different court outcomes. It provided a helpful tool for the management in assessing the value of different strategies. Some risks for example had been understated by management but could adequately be assessed in this way. We managed to find an amicable settlement to the dispute that added value to the client in relation to the other expected outcomes. The in-house lawyer had found it especially helpful since she perceived that it was easier to find common ground internally when structuring the dispute with numbers in this way.
What are your thoughts around the future of decision analysis in law?
I think decision analysis will continue to be a valuable tool that every lawyer should have in their toolbox. With new digital tools promoting decision analysis in a simple and practically useful way I think the use of decision analysis has the possibility to expand even further.
Thank you for sharing your thoughts, Anna!
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