Litigation risk analysis important in assessing success of a case ⋆ LegalMattersCanada

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‘You want to assess what the evidence is likely to be’

“To do a proper litigation risk analysis you need to identify the issues. On each issue, you want to assess what the evidence is likely to be and determine the chance of success,” he says. “You should do that for every issue and then, using a mathematical formula, you can come up with a likelihood of success on the whole. Then you can plug in a monetary value.

“For example, if you believe the case is worth $100,000 and you give yourself a 60 per cent chance of winning, the math is easy. It would make sense to resolve the case if you were offered a settlement in the range of $60,000. Whereas if you’re being offered $30,000, that might not be in your client’s best interests.”

To serve a client effectively, Rudner says a lawyer needs a critical eye when evaluating a case.

“Part of the reason a client is coming to you as a lawyer is to get that objective assessment,” he says.

However, while the client may have indeed been wronged it doesn’t mean they will be able to prove their case, Rudner says, which is why it is incumbent upon a lawyer to “take a step back and think about what the evidence will be.”

“A client might be extremely confident they can prove harassment for example, but if there are no witnesses who are willing to testify and there’s no documentation, then you have a really low percentage case. It’s important for counsel to explain to their client that ultimately evidence wins cases,” he says. “It’s certainly not something some people want to hear, but that’s the reality. The only people who know the truth are the people who were there and the judge was not one of them.”

Plaintiffs should not assume they will get the evidence they need

Rudner says plaintiffs cannot always assume they will get the evidence they need from eyewitnesses.

“A perfect example in the employment world is when you have a client who is claiming a toxic work environment and says everyone there was a witness to bullying and abuse,” he says. “But the reality is, all of those people are likely still employed and may be less inclined to give evidence against the company. So even though there may have been witnesses and even though what your client is saying is 100 per cent true, you may not be able to prove it.”

Documented evidence such as emails, texts or social media posts that support a claim will go much further in deciding the success of a case, says Rudner.

“People tend to be more persuaded by documents than by witnesses. Strong documentation makes your case much stronger,” he says. “If everything is verbal there is going to be an issue of credibility so you need to take that into account when you are assessing the strength of your file.”

Litigation risk analysis should be done early in the case, Rudner advises.

Waiting to do an assessment can be costly

“The longer you wait to do it, and do it properly, the more time and, more importantly, the more money you and your client are spending,” he says. “If your client is $50,000 into it and they are then told they don’t have a very strong case, they are obviously going to be unhappy.”

A thorough vetting of the case is also essential in managing client expectations, says Rudner.

“You should really ensure your client is approaching their case realistically and understands that no matter what happens, evidence will rule,” he says, “If that is not done, then what often occurs is you go to mediation and when your client gets a first offer from the other side, they might be deeply offended because they believe it’s ridiculously out of line with their legal entitlements.”

As a mediator, Rudner says cases run much smoother when the proper risk analysis has been conducted.

“In my role I am usually the first neutral party looking at this case because although counsel should provide an objective assessment, they are not obviously going to be entirely objective,” he says. “I can provide my own assessment on the strengths and the weaknesses of the case and even though I do not have a crystal ball, I can give a realistic opinion as to what is likely to happen if it goes before a judge.

In every case ‘it is vital to dig down’

“That is why it is vital to dig down. Often, when I’m acting as the mediator, an employer will claim they had just cause to fire someone,” Rudner adds. “I will ask, ‘What’s the evidence? Do you have a video? Do you have witnesses? Will those witnesses testify?’ In many cases, I find the parties haven’t really turned their mind to that.”

As well, the law can change before a claim is heard and without a deep understanding of a case, a lawyer and their client can find themselves in an unenviable position.

“Uncertainty in the law can change an outcome. The perfect example is what is going on right now with people who were laid off because of COVID,” Rudner says. “We had this great debate in the media about whether those terminations constitute constructive dismissal and now we have three court decisions on the issue. Two say it was constructive dismissal and one goes the other way. The law on that point is completely up in the air.

“If you are a lawyer for one of the parties in a case like that, you really cannot give your client a strong opinion as to whether they will succeed or not.”

In the end it comes down to doing the work necessary to build a convincing case, he says.

“As I always tell my clients and the parties when I am in the role of mediator, is that a judge is not going to know what happened.’ All a judge is going to know is what the evidence demonstrates,” Rudner says. “A judge is going to render a decision based upon evidence and not necessarily based upon truth, which are two different concepts. In order to know whether to settle or not, you must do a realistic assessment of the case.”