We hear it all the time… “There is less than a 2% chance that your case will be decided by a jury!” Still, how many of us REALLY understand what that means? The Answer: not too many.
“Less than a 2% chance” is unlikely. Not just a little unlikely, it’s super-duper unlikely. However, we human beings have difficulty perceiving odds and percentages when the outcomes can have a significant impact on our lives. This is driven by a range of cognitive biases that influence our ability to predict the future.
For example, you have about a 2% chance to draw the 7 of Clubs on a single pull from a deck of cards.
Think about this for a moment. One pull... One card... 52 options.
Imagine that I present you with a full deck of cards, face-down on the table. You have ONE chance to pick a card and you MUST pick the 7 of Clubs. Does that feel likely? Not really, huh?
Now, what if I say you must pick one card from the deck and it CANNOT be the 10 of Diamonds. If you pick the 10 of Diamonds something REALLY BAD will happen. Does that bizarrely feel more likely than the 7 of Clubs? It does to most people.
When self-interest accompanies an outcome, our (already poor) ability to comprehend statistics gets much worse.
Americans have about a 2% chance of contracting kidney cancer. If you know someone with kidney cancer (I'm sorry), that number likely feels off. If you don’t, it likely feels about right or high. Either way, it doesn't change the fact that 2% is REALLY unlikely.
Imagine if you went in to your physician’s office feeling fatigued and your doc replied:
“Well, it could be a lot of things, but you DO have a 2% chance of kidney cancer. So, we should setup a kidney cancer treatment plan for you and you should be prepared for chemotherapy and targeted radiation.”
Personally, I would immediately walk out (and probably report the doctor for potential malpractice.)
Yet, legal decision-making is often based on a jury verdict being a LIKELY outcome (or at least NOT UNLIKELY). The potential costs of a trial are calculated into settlements. The fear of runaway juries impacts litigation strategy. The unpredictable (and memorable) jury verdict hangs above litigants like the Sword of Damocles. Only, instead of a horse hair, it is secretly being held by a really sturdy rope (98% strong).
When predicting litigation outcomes, it is VERY difficult to silence our emotions and internal psychological mechanisms. The McDonald's coffee verdict is quietly swimming in the background. The only hope is to truly step back and think about the percentages. Most humans operate on intuitive statistics, which explains why lotteries exist.
If you want to avoid falling prey to the curse of numbers, take away their power.
Who is the Author?
Convince,LLC and www.LitPredict.com founder Matt McCusker, MA is a nationally-known Litigation and former President of the American Society of Trial Consultants (ASTC). He has utilized his background in I/O Psychology to provide innovative solutions for legal teams and Fortune 500 corporations around the world.
Matt has served as a source for many media outlets (the Wall Street Journal, CNN, “This American Life with Ira Glass”, the Chicago Tribune, and more). He is available to teach/present about the crossroads of psychology and litigation at law schools, professional organizations and conferences. Contact him at Matt.McCusker@LitPredict.com or 704.754.8699
Musings on the state of the legal world by the Convince,LLC founder.