Lawyers are at last working to improve legal processes, that is, how they actually do work. An overlooked process may well be communicating with clients.
Communication as a process became clear from two recent items I read. Litigation Predictions: Plain Speaking and Clear Thinking by William J. Connolly and Andrew J. Morris in ACC Docket, November 2011 (subscription required), provides practical advice on how lawyers should discuss litigation risks with clients. The authors explain that just saying “you have a 60% percent change of winning” raises three problems. First, unless a client faces multiple similar cases, it’s hard to understand what that single probability measures. Second, this probability - whether or not accompanied by another common measure, expected value - does not communicate the range of possible outcomes. An 80% chance of winning may be irrelevant if there is a 5% chance of a company-killing outcome.
And third, our word choice influences how we think and how we decide. The authors suggest that instead of saying “60%", you say “60 outcomes out of 100″ to emphasize thinking about multiple possibilities. Not long ago, I might have scoffed at that suggestion. But I recently read Thinking, Fast and Slow by Daniel Kahneman. Kahneman, a Nobel Laureate, demonstrates that we are much less rational than we think. One manifestation of our less-than-perfect rationality is that phrasing hugely affects our decisions.
One of his examples looks at two alternate ways to convey data to doctors: (1) 90% who receive this treatment survive OR (2) 10% who receive this treatment die. Doctors’ decisions depend very much on the word formulation even though logically, the two are equivalent. (The book is filled with many such fascinating examples.)
So, where does that leave lawyers? As a profession, we need to re-consider and improve how we communicate legal choices to clients. Even where the client is in-house counsel rather than a lay person, lawyers must understand the communication process and improve it. For now, I can only raise the issue; I cannot offer solutions.
Technology likely will play a big role in improving communication. I am surprised that the ACC article does not mention litigation risk analysis and decision trees as a way to improve communicating about litigation risks. Decision trees can force us to consider systematically all outcomes.
Other tools can help communicate legal choices and decisions more clearly. I am not a Mind Map person but I suspect some would say they help. Other visualization tools exist today or may emerge that would help us improve how we communicate risks, issues, and choices.
Improving communication with clients will benefits lawyers in multiple ways, not least because better communication supports effective alternative fee arrangements. Win-win AFA require joint lawyer-client clarity about the contours of the problem and the range of potential outcomes. Law firm pricing experts already seek good budgeting and project management software. To that wish list, we can add new and better communication tools. Let me know what you find!