Jamie Gardiner believes that most lawyers' complex litigation analysis is weak so he set out to find a better way. Jamie believes that litigation tools can help lawyers and clients better understand litigation value and risk so that clients can optimize their litigation decisions.
Peter Aprile and Natalie Worsfold talk to Jamie about the current structure, methodology, and thinking that underlie most litigation analysis and client reporting. The group discusses how lawyers can leverage technology and process (including risk and decision analysis and sensitivity analysis) to think deeper and deliver a more sophisticated analysis to predict outcomes better, and put clients in the best position.
Jamie Gardiner specialises in cases combining legal and financial analysis.
On the legal side, Jamie has broad experience across commercial disputes. He particularly enjoys technical points of contractual / statutory interpretation – and finding them in factually ‘messy’ cases. From 2005-2007 he practised as a Barrister in London, so is able to advise on questions of English law.
On the financial side, he likes spreadsheets, cross-examining accountants and insolvency practitioners, complex corporate structures, quantifying loss, valuing companies and interrogating financial statements.
Jamie developed these skills as a Business Consultant. From 2007 to 2015, he worked (latterly as Director) in Accenture’s Trading, Investment and Optimisation team. He led projects in the energy, financial services and beverages sectors. His clients included BP, British Airways, Diageo and a major bank.
Peter Aprile is a senior lawyer specializing in tax dispute resolution and litigation. His vision as Counter’s founder and his everyday role at the firm are one and the same: to be an agent of change, uncovering opportunities and developing strategies that achieve more than anyone expected. A creative thinker, Peter studies problems from all different angles to find what others have missed. He’s also convinced that he likes winning more than most people.
Different people describe Peter in different ways. At the CRA and the federal Department of Justice, the word relentless comes up quite a lot. Admittedly, so does the word a**hole – but it’s often said with a certain grudging respect, if not affection. Peter’s clients call him a saint. Well, some of them, anyway. His colleagues describe him as empowering and harddriving, but fair. Peter’s friends call him loyal. His wife describes him as a lot to deal with, but worth it. Peter encourages his young daughter and son to call him “The Big Homie,” though with limited success. His mother describes him with the single word mischievous – before going on to complain that he should call more.
Natalie is a tax lawyer who represents individual taxpayers and owner-managed businesses in disputes with the Canada Revenue Agency (CRA). She also successfully challenges CRA decisions denying taxpayer relief and helps facilitate applications under the Voluntary Disclosures Program.
But what you really need to know about Natalie is that she’s a tax litigator with heart. When she takes a case, it’s not out of technical interest – it’s because she cares. And if she believes the government has got something wrong, she won’t stop until it’s been put right. She’s fierce.
Natalie is the co-architect behind many of Counter’s process workflows, software and data analytics systems, as well as our comprehensive knowledgebase (loving named Hank). And when it comes to preparing cases, she’s Counter’s secret weapon – happiest when elbow-deep in evidence, meticulously building creative solutions to seemingly impossible problems. Because the fact is Natalie sees things that other people don’t.
Natalie’s family and friends describe her as loyal, selfless, understanding and fun. They also mention stubborn. To her Counter colleagues she’s a combination of stellar brainpower and contagious enthusiasm who elevates the game of everyone around her.
Tech, Tools & More
[00:00] [background music]
Peter Aprile: [00:08] Hi, and welcome to "Building New Law," Canada's first and only CPD‑accredited podcast. It's hosted by me, Peter Aprile, and my colleague, Natalie Worsfold.
Natalie Worsfold: [00:17] In each episode, we interview lawyers, legal technologists, and other like‑minded people at the forefront of new law.
Peter: [00:24] We hope that the podcast connects new law community and helps us all learn more about the approaches that are changing the way that we practice law.
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Announcer: [00:40] The Building New Law podcast is supported by Counter Tax Lawyers, a new type of tax controversy and litigation law firm. To learn more about Counter, go to countertax.ca.
Peter: [01:00] Today, we're chatting with Jamie Gardiner about quantitative risk analysis in litigation. Get excited. If you've listened to our episode with Dan Katz, you'll know that this topic is near and dear to our heart.
[01:16] We're currently building some software called CounterMeasure to improve this type of analysis in litigation files. We want to move from relying on a lawyer's gut feeling about litigation decisions to a place where lawyers and clients have meaningful discussions, deep discussions, about numeric probabilities of success, and what success looks like in terms of dollars and cents.
Natalie: [01:35] Jamie caught our eye because he shares our passion to bring quantitative analysis to law. Jamie is a very successful litigator in England and Scotland, and has spent several years with Assentia in quantitative risk analysis.
Peter: [01:48] To say that we struggle to find practicing lawyers doing this type of analysis is an understatement. Jamie is not only having these discussions with his clients, but he's also building software to help with the analysis.
Natalie: [01:57] We wanted to hear from Jamie about why he thinks risk analysis is important, and what he's hearing from other litigators and clients about risk analysis.
Peter: [02:05] Here's our interview with Jamie.
Natalie: [02:10] So, Jamie, thank you so much for joining us today. We wanted to talk a little bit about litigation risk, and then your company CaseQuant. But before we get into the details, can you tell us a little bit about yourself and what you do?
Jamie Gardiner: [02:25] Sure. Well, I'm an advocate in Scotland, which means that I deal with cases in court. Usually, commercial cases, but it's a bit of a mix. We're a relatively small jurisdiction, so to some degree, we all have to be generalists.
[02:39] But my background before that is that I was a management consultant, and I was advising energy companies, trading companies, and companies in lots of other sectors. And the area that I specialized in was risk management.
[02:53] What's been interesting recently is coming to the law with that kind of background. And, of course, you see things from a different perspective. And, when I arrived here, doing what I do now, my first reaction was, "Oh, my goodness. Compared to the environment that I've just been in, the law is immature," in terms of how it advises clients on risk, how it quantifies risk, and how it manages risk.
[03:20] And it's that insight, that surprise from going from one environment to the other, that brought about my interest in applying that area to the law.
Peter: [03:32] So can you tease that out a bit? In particular, what did you see, or what did you think? What perspective were you now bringing to the law that struck you? Is there a particular example that can tease this out a little bit more, or explain to people what you saw?
Jamie: [03:47] Sure. I'll come to an example later, but just in broad terms, what surprised me is that you have, on one side, lawyers who are doing legal analysis, thinking in words, and in effect, answering essay questions.
[04:03] So we'll come back with a lot of legal analysis, and perhaps say, "Look, we think you've got reasonable prospects of success." And then, on the other side, you've got clients. And they're seeing litigation as an investment decision.
[04:19] And they're thinking in terms of numbers. And they're thinking under returns that they can get back on this investment in going to court. And down the middle there, you've got a chasm, or a divide, that there's nothing really cutting across.
[04:35] Because it's like each side is speaking a different language. And what I would see is, in the course of consultations, we would be giving that qualitative legal advice. We would be saying, "There are good prospects of success here," but that wasn't something that the clients could base a decision off.
[04:52] So they then had to go and translate that into numbers. And it's that translation process that itself is a real risk. Because it's like there's the story about Kennedy during the Cuban missile crisis and the chiefs of staff advised him that there was a fair chance that the action would be successful.
[05:13] Kennedy took that to mean that it was almost bound to succeed. And then, obviously, it didn't. And that the chiefs of staff later said, "Well, actually, we were thinking round about a third probability." So you have all of these risks of misalignment.
[05:27] And you make it really difficult for lawyers to guide their clients through the process effectively. The lawyers hand over their legal analysis. And then, they step back. And the clients have to go and use that as best they can to make a decision. So that's the gulf I see. That's the problem.
[05:47] And it seems to me that as lawyers, it's our job to find a way to reach across that divide and to find a way to speak in a common language.
Peter: [05:55] It's odd to me because I'm not sure what you know about us but we practice litigation, as well. And especially as litigators, especially as people that, arguably are paid to not only persuade but to communicate.
[06:11] Why do you think it is that so few lawyers have bridged this gap and found a better way, frankly, I would argue an obvious way to communicate with their clients?
Jamie: [06:22] Well, I think there are a few explanations. So, one explanation is rooted in the skill set that lawyers have and the disciplines that contribute to the practice of law tend to be quite distinctive from the more quantitative disciplines that allow you to turn legal advice into investment decisions.
[06:43] The other problem is that there are a lack of tools to support lawyers. Because it doesn't make sense for lawyers to go off and get a good knowledge of statistics and analytics, and so on. We need to find a way to let lawyers specialize in what they're good at.
[07:01] And to be guided through the process of translating that into a language that businesses can understand and then can use.
Natalie: [07:09] Is this something that you'd seen clients asking for?
Jamie: [07:12] It's a difficulty in the sense that it's something that clients are missing. But they don't always know that they're missing it. [laughs] They don't know that there's any other way. Once you raise it with clients, they're very familiar, uncomfortable with the concept.
[07:26] Because effectively what you're telling them is that they can approach litigation decisions in the same way as they approach all the other decisions across their business. And clients are used to uncertainty. They're used to balancing risk and return. And they're used to optimizing their decisions based on their risk appetite.
[07:45] So the answer is I wasn't finding that there was an express demand but I was finding that once we were able to start giving it to them, they wanted it and wanted it more. Because it's oftentimes one of the first questions that clients have. Although they don't know that there's this different way of answering it.
[08:04] But they come in, they say, "Well, how much is this case worth?" And then, the lawyer says, "Well, reasonable prospects of success, the amounts stood for is X, Y, Z." And they accept that. But tell them, "Hey, look. There's a way that we can really understand this uncertainty in a lot more depth." And they grasp it.
Natalie: [08:24] Are you having these types of discussions with your clients in your practice right now?
Jamie: [08:28] Absolutely. What I've found is that it's not appropriate for all cases. If it's a small case and it's reasonably simply understood, then a more intuition, instinct‑based approach can work OK. But as soon as you get a bigger, complex case, it becomes very important.
[08:46] And it becomes important at various stages in the litigation lifestyle. It becomes important when you're deciding whether it makes sense to bring a case. Most importantly, it becomes significant when you're thinking about whether to settle a case.
[09:00] Because you get an offer for a million pounds from the other side, you've got to ask yourself, "Well, how much is my case worth? Is it worth more or less than a million?" And lawyers already do that. They have to do that. There has to be some basis for them to say that that's a good offer or a bad offer.
[09:17] But often, they're not doing it in a way that's transparent. And they're not doing it in a way that's structured. They're relying wholly on their instinct. And that's not a sensible way to deal with these big decisions where the financial stakes are often extremely high.
Peter: [09:33] There are lawyers listening to this that might not have experience in this regard or might not think this is necessary. Why is that intuition‑based approach not as sufficient way to deal with complex matters?
Jamie: [09:47] Because those lawyers can't tell their clients how much their case is worth. And those lawyers can't give a reason basis for saying that an offer is a good offer or a bad offer. It's really as simple as that.
Peter: [09:59] I'll play the devil's advocate because I've heard these criticisms before. But nice to have them out in the world in a podcast form. The criticisms or the response from some of these lawyers that don't use some of this methodology would be, "What do you mean? I tell my clients all the time what the cases were, so we know what the cases were, number one."
"[10:20] We don't need any risk analysis or any additional help to provide that. That's just simple math. And I can tell my client what the probabilities of success are by listing, or by explaining, at the very least, what the law is, and the strengths and weaknesses of the facts and evidence to support our position, as well as the facts and evidence to support the opposing party's position."
Jamie: [10:43] Actually, I buy that up to a point. I suppose that the difference is, I reject the premise that the analysis involved is quite simple. Where I would accept that argument is that lawyers are capable of analyzing the probability of success for different parts of their case, and the likelihood of the range of possible outcomes in each different head of loss.
[11:10] They can do that when the case is broken down into relatively small parts, but as soon as you get even a medium size case, then you suddenly start dealing with a lot of parts. There were a lot of different arguments being advanced, and each one of them may have different probabilities.
[11:26] And then you have to combine those probabilities, and each of the heads of loss may have a different range. And you have to combine those ranges. And then you start heading into that, the fact that all of these heads of loss and arguments aren't independent, they're all interdependent.
[11:40] So, it may be that one argument only succeeds if another fails, or that the case has been put forward in alternate bases, and if one basis succeeds, then heads of loss A, B, C succeed. If the other basis succeeds, then head of loss D, E, F succeed.
[11:56] Now, as soon as you get to that level, my experience, certainly, is that lawyers aren't able to do it. And I think, in fact, it's very hard to do without tools to help you.
Peter: [12:06] Again, I'm almost embarrassed to lob these arguments at you, but I will, just because I've heard them before. Please don't ascribe them to me. There are lawyers that will say, "Well, that might not be simple for you, Jamie, but the deficiency lies with you."
Peter: [12:21] This is something that's quite easy for me as a lawyer to do in my head, and something I'm well‑trained to do. So, the deficiency lies with you, and to the extent that you need these tools or this depth of analysis, the fault lies there."
Jamie: [12:35] [laughs] Well...
Peter: [12:35] Sorry, but this is what I hear.
Jamie: [12:38] No, no, no. I hope that's not true.
Peter: [12:39] Right? [laughs]
Jamie: [12:40] I suppose it's for others to judge. I don't think, if you get a lawyer who comes and says, "Look, I can do all this in my head," then brilliant. Then they don't need the tools.
Peter: [12:58] Do you believe that that's possible?
Jamie: [13:00] I'm sure it's possible. I'm sure there are professors of mathematics who can do this, but I don't think it's the exercise that lawyers actually perform. I don't think they try and quantify all the different parts of the case, model out the dependencies in their head, model out the uncertainties, and then run the analysis, and come out with a number.
[13:18] I think what they do is rely on what we do, is rely on instinct, and say, "Look. This seems like a such‑and‑such type of case. In the past year, I have had a couple of other of such‑and‑such types of cases. And I've had a range of outcomes from a million pound to two million pounds, and I lost one of them, and I won one of them."
[13:39] So, it's like anecdote and instinct‑based analysis. Now, it must be better, if there's a more robust methodology, where you can break the problem down, and then you can deal with it in smaller chunks. And, of course, the other thing about doing it that way is that what you have is transparent.
[14:03] And at the moment, as lawyers, we miss the chance to calibrate our predictions and our analysis, because they're not broken down enough. And because, when a case is finished, we can't remember the assumptions that we used in coming up with our ballpark estimate.
[14:18] If you do this in a more structured way, then you've got it all there in front of you. And if it turns out that some of your assumptions were incorrect, then at the end of the case, you can recalibrate, and you can do better next time.
Natalie: [14:35] When you're speaking with your colleagues and things like that, has any of the other lawyers that you work with shown an interest in applying this?
Jamie: [14:42] Yeah, everyone that I've spoken to has shown an interest in it. And there are a couple of firms in Scotland that are using the approach on quite a small scale, while we refine the tool and get their feedback on it.
[14:58] But it's quite an attractive proposition. If you're saying, "Look, there's a way where, without going and learning the A to Z of statistics, you can use the analysis that you already do, because you already think about the likelihood of success, both in the different parts of your case and so on."
[15:15] And you can come up with a much more meaningful analysis at the end of it. And instead of just going to your clients and saying, "Look, we think there's a reasonable prospect, and we think that probably you'll recover something, about £1.5 million," you can go to them, and you can say, "Look, based on these assumptions, this is how we view the prospects on your success."
[15:37] And it's a much richer analysis, because instead of relying on, say, a single number, you're talking in terms of probabilities. Because you're never going to get around the fact that there's uncertainty there. What you can do is you can understand the uncertainty better, and in a richer way.
[15:53] So, you can say, "Look, these are the range of potential outcomes, based on your presumptions that we've worked on together, and here are the likelihoods of different levels of award," awards in buckets. "Here's the probability that the case is going to be worth between £1 million and £1.2 million, and so on."
[16:15] And that's a much more meaningful conversation about uncertainty, and it's a jumping off point into other conversations about litigation funding, about settlement, and about all the steps that you can do to match up the risk in the case with the client's risk appetite.
Peter: [16:32] Again, getting back to the naysayers, it's still art, not science. The predictions and probabilities are still coming from the lawyer, him or himself. And as such, they're not perfect. They will be flawed. And the naysayers would say, "That is a reason to support not going down this road, not bringing this rigor to the analysis." What do you say to that?
Jamie: [16:55] Well, often I find that when people are being critical of this kind of methodology, they're comparing it against perfection. They're comparing it against a world in which there is no uncertainty at all, and they're saying, "Look, this still isn't getting you certainty."
[17:09] Well, that's right, but that's not the appropriate comparator. The right comparator is how they're doing it at the moment, relying on instinct, relying on anecdote, and doing it in a nontransparent way. So, sure, you're never going to get rid of that uncertainty, but you are going to understand the uncertainty better.
[17:27] And then the inputs have to come from the lawyers, that's true, but there are other ways of getting to better certainty about those, or getting more accuracy in terms of the inputs and the assumptions.
[17:40] Like there are all sorts of tools out there which analyze historic case data and say, "Look, for this type of action, you've got a such‑and‑such probability of success based on a benchmark taken from all the other cases in the same bracket."
[17:56] Now, I think the potential to combine the approach that I've been talking about, which is assumption‑led and based on statistical analysis, with that approach, which is big data‑led, is quite exciting, because it means that you're still relying on these assumptions which are unique to your case.
[18:16] So, you're still getting an outcome, which it's more than a benchmark. It's something that fits the case that you're dealing with, but you've got more assurance about the assumptions you're putting in, because you're able to test it against weight of benchmarks.
Natalie: [18:28] The way you talk about testing your assumptions and things like that, one of the reasons we're really attracted to risk analysis and that sort of methodology is improving the quality of the legal, I guess, advice and recommendations that are given.
[18:43] Have you seen ‑‑ I guess, in your discussions with clients or even with your colleagues, actually ‑‑ the quality of the legal work going up when this methodology has been applied?
Jamie: [18:54] Absolutely. I find that it's most useful in settlement discussions. So, you get an offer in from the other side, and unless you're using a methodology like this, the conversations tend to be pretty unsophisticated. I've been involved in those conversations.
[19:11] I've led those conversations, [laughs] so this isn't being critical of others. This is something that as our profession, we share. We say, "Look, on the one hand, they've offered such‑and‑such. You might get a little more, but on the other hand, there's a risk that you won't get anything.
"[19:28] There's a risk that you're gonna be bearing the expenses in this case. We think it's a good offer," and then the client goes, "Oh, it's a good offer, is it? You know, how bold am I feeling today? Do I wanna take a risk? Do I not wanna take a risk? Heck yeah, let's go for it."
[19:44] Now, that can be a good methodology. [laughs] I promise that isn't how CEOs take decisions when they're considering whether to build a refinery or to invest in a new product line, so why is it that's the way that we're taking decisions in legal practice?
Natalie: [20:03] No, I absolutely agree. It's a very strange...It's almost like you see the lawyer stop their analysis before they actually get to the point of recommendations. I always feel like it's almost like lawyers feel like their role is to analyze the legal principles and then stop right before the decision, if that makes any sense.
Jamie: [20:25] I think that's exactly right, and that's the chasm that I was trying to get at before, because it means that at the point of making the decision, the lawyer isn't there guiding the client.
[20:35] I think that's a big failure, and if we can give the client more meaningful analysis, then it means that the client, too, can be less reliant on instinct, and they can make the decisions the way they make all their other business decisions.
[20:50] Because I think as lawyers, we tend to think there's something unique about litigation decisions, because they're so complex and they're so uncertain, and there's always a roll‑call of reasons.
[21:02] But actually, there is nothing unique about litigation decisions. The content may be unique, but businesses across the world [laughs] make big capital decisions, based on assumptions which are uncertain.
[21:18] And the fact that the assumptions are legal assumptions, or decisions about prices of a product, which are commodity prices, or political risk, isn't fundamental. There is this opportunity to take the techniques that are used in other areas, and apply them to the law. There's nothing predetermined that says, we have to take decisions in a really amateurish way, because this is law.
Natalie: [21:41] I absolutely agree, yeah, and one of the things I think of is, the idea that lawyers are just scared of being wrong. Have you seen that?
Peter: [21:50] Yeah, I'll jump on that, as well, and give you more naysayer commentary.
Peter: [21:56] I was asked once, "You show this to your clients?" I said, "Yes," and he said, "Aren't you scared?" I said, "Scared of what?" and he said, "Well, what if your probabilities are wrong, and then at the end of the day, you attract some sort of liability from your client, when they point back and say, 'Look, you were wrong, and this is what you told me to do'?"
[22:16] Have you ever come across anything like that, as well, or how do you respond to that? Sorry.
Jamie: [22:22] I've certainly come across that as something that people say, although it tends to be something that people say when they're first considering this, and once they understand how it's to be used, they become a little more comfortable with it.
[22:37] So, what I would say is that, the real risk is going to a client and saying, "Look, there are good prospects of success," which the client often takes as, "Yeah, we're gonna win," and to say, "Yeah, probably, but you might recover if you're successful, a millions pounds." And often the client becomes fixated on that number, because you're using single point predictions for an outcome that's mired in uncertainty.
[23:03] So, this approach is that, it isn't about pinning your colors to a single number, it's exactly the opposite. It's about recognizing that there's uncertainty, and it's about saying, "Look, how do we understand this uncertainty better? Let's stop talking in terms of absolute predictions, let's start talking in terms of probabilities."
[23:21] And, of course, there's a right way to put that across, so you have to say, "Look, these probabilities are based on the assumptions that we've entered. We think these are the right assumptions, we think that based on our experience," and so on, but if the assumptions are wrong, then the probabilities are going to be wrong.
[23:36] But clients get that, it's no different to other types of investment decisions, where clients get that. What it does illustrate though, is that it's not enough just to put together some form of analysis, or a tool, because it's...coming back to what we were saying earlier, about the reasons why lawyers don't take this approach in the first place.
[23:59] And you have to lead the lawyers through, too, and to say, "This is how you should be presenting this to the clients, this is how you should be explaining the limitations of the analysis." And once lawyers are comfortable with that, and it doesn't usually take a great deal for them to become comfortable that the criticism falls away.
Peter: [24:19] Another thing I see is clients don't...In my experience at least, some clients don't understand that lawyers are not doing this. I think that if you describe how, as you call it, how unsophisticated sometimes the law or lawyers analysis might be.
[24:35] Clients will be pretty surprised that this isn't what's actually going on in that. Let's say the outliers that are doing this. First of all, have you found that?
Jamie: [24:43] Absolutely. I mean it's a funny situation, isn't it? Because you have the lawyer here thinking, "Well, I'm going to say there are reasonable prospects of success, and that's a meaningless phrase. So I'm protecting myself from any form of comeback because whatever happens. I can say, 'Well, that prognosis is correct,' whether the case succeeds or the case fails."
[25:04] But then you get clients hearing that, and what they're hearing is that my lawyer thinks I'm going to win. And this is the difficulty when we're communicating our analysis, making decisions based on words because we don't always have a shared understanding of what those words mean.
[25:20] It's back to the Cuban missile crisis then, and there's that risk of misalignment. And sometimes lawyers, we underestimate that risk, and we get wrong how our clients take in our advice.
[25:33] But you got to ask the question ‑‑ if clients are going to interpret the lawyer's advice one way or the other, then what basis are they going to have to make their decisions? In a way that clients are forced into a corner because they have to make a decision.
[25:46] There's no option where you don't take a decision. You either have to settle or not settle, for example. You either bring the case or don't bring the case. So out of necessity, clients are going to be inclined to hear what a lawyer tells them as go for it or don't go for it.
Peter: [26:01] The other thing I know about this type of analysis is that the depth of analysis and the rigor that this requires is more than the other way. Let's say it that way. And what that means whether you're building on a flat fee basis or an hourly basis, or what have you, is it will cost a client more money.
[26:22] First of all, do you think that that's true? And second of all, at least cost the client more money in the short term, i.e. in the analysis that the client might have an upside because they make a better decision. And the long view would put more money in the client's pocket, or a better ROI in the client's pocket.
[26:38] But do you feel, in your experience, are clients willing to pay for this? Do they understand that and are they willing to pay for it? Do they see value in it?
Jamie: [26:46] It depends on the decision. If it's a really small case where not that much turns on it, then maybe they just want to have a shoot from the head prognosis from a lawyer, but if this is a big case where millions of pounds are at stake, then certainly the clients that I work with see the benefit in paying a little more fees to make sometimes a much better decision.
[27:12] Because if you don't have this kind of disciplined analysis, because of that you make a wrong call right at the start to raise the action, when in fact you shouldn't, or to reject a settlement when you should've accepted it.
[27:25] Then not only as the outcome going to be not what you expect it, but the fees that you incur along the way can be enormous. So, it depends. It's all a question of optimization. How much did you put into the problem? Well, it depends on how much you're going to get back from it.
Natalie: [27:43] So I think that's probably a good jumping point to start talking about CaseQuant. So, we know that you're building this tool to help structure that risk analysis. Can you tell us a little bit more about it?
Jamie: [27:55] CaseQuant's a tool to perform exactly the risk analysis, financial analysis and litigation that we've been talking about. So, it goes in a couple of stages.
[28:05] So, the first stage is that the lawyers enter assumptions about the case, and it breaks the case down into the small chunks, into different heads of loss and to different arguments in bite‑sized chunks so that a lawyer can meaningfully enter predictions about how likely each part is to succeed, about how much each part is worth.
[28:27] And it lets lawyers put in the uncertainties. In other words, they can say, "We think that this argument has a 50 percent probability of success. So we think that the range of outcomes for this head of loss is between X and Y."
[28:40] So, at the end of that, you get a set of assumptions about the case, and to enter those assumptions, you don't need to be a mathematician, you don't need to be a statistician. You just need to be somebody who knows the case and who's done the case analysis, and that's case that you would have done anyway.
Natalie: [28:57] And this is something you're partnering with? Is this linked back to your time at Accenture, or is this something that you're just doing, I guess, as a hobby?
Jamie: [29:04] Well, it's more than a hobby. There are [inaudible] formal ties with Accenture, but some of the folk that I've worked with there have been giving input into that.
Peter: [29:14] What Natalie is trying to ask you politely is how are you funding this?
Jamie: [29:18] How am I funding it? I'm funding it personally. The real cost though hasn't been. It's not something that we had to write a massive check for because it's not something that we're trying to market to a huge customer base or anything like that. It's very much a business‑to‑business tool.
[29:36] We sell it by me going around to talking to people, so the real investment has been one of time.
Natalie: [29:42] All I can think of is if I'm a litigator and I'm listening to this, what is one small first step I could take to having these types of discussions with clients, and learning more about how to use these tools and things like that?
Jamie: [29:55] Well, the first step is probably to have a look at some basic decision trees. That's in the same family of solutions as the solution is in.
[30:05] And to look at the key uncertainties in your case and to say, "Well, let's draw the tree out, the branches out at each of those uncertainties and to quantify the value along each branch, and then to use that to calculate the value of the whole case," that's something that you can do with a piece of paper and a pen, and pretty basic numeracy. So, there's no obstacle to doing that now.
[30:31] Part of this is also just about recognizing the problem. As soon as you recognize that there's a need to talk to commercial clients in the language that they understand, and to give them analysis that they can use to meaningfully feed in to their decisions about what to do with litigation.
[30:51] Then you can start trying to talk to them in a different way. You can start, try to stop. You can try as much as you can to cut out phrases like "reasonable prospects of success." Even if you start talking about good, bad and expected outcomes, that's a start.
Natalie: [31:06] Have you seen any resources anywhere that can help people, or lawyers, I guess, translate the qualitative words like "reasonable prospect of success," or "fair chance," and things like that into numbers?
Jamie: [31:20] After the Cuban missile crisis...Sorry, I seem to be talking a lot about the Cuban missile crisis.
Peter: [31:24] Well, it's a big deal.
Peter: [31:25] It's not going to be the end of everything. Fair point.
Jamie: [31:30] It possibly does not [inaudible] quite so much in conversations about law. But we need more Cuban missile crisis today.
Jamie: [31:40] But the CIA did an inquiry at the end of that, and they produced a report. And it was looking at the dangers of civilian big verbal predictions. And they came up with a scale based on different percentages of likelihood. I think there are eight tiers in that. I can't remember. But it's very easy to find if you stick it into Google.
[32:05] That was an attempt at standardizing the language around commonly understood percentages, but the reality is I don't think there's a quick solution to this. There are some incrementals that you can take, but I think in order to speak the language that clients are speaking, and the clients need to hear when they make investment decisions, then you need to do something more fundamental.
[32:29] It doesn't need to be super hard. It doesn't need to change the way that you practice law fundamentally, but it's a big enough problem to demand a decent‑sized chunk.
Peter: [32:41] I hesitate to even ask you. Is there anything that we missed that you want us to cover before we wrap up?
Jamie: [32:45] No, I don't think so. I do. I love talking about this stuff. I get the sense that you like talking about this stuff as well.
Natalie: [32:52] Hundred percent. [laughs]
Peter: [32:53] Yeah. So we had to find you because...
Natalie: [32:56] Nobody else is doing this. It's really hard to find people. [laughs]
Peter: [33:00] Have you find a network of people that are doing this? Have you found a community of people surrounding this?
Jamie: [33:05] Not really, apart from the folks that we've been working with up in Scotland. I don't know them personally, but the stuff that Dan Katz done is perfect.
Natalie: [33:15] Absolutely. Yeah.
Jamie: [33:16] I'm a big admirer of him. So, there are points of light right there, but it is not yet widespread. But who knows? There may be a tipping point.
[33:28] I suspect that there would be a tipping point. Because as soon as some folk are using this to help with big commercial cases, then everybody, every gal is going to have no choice but to catch up quickly.
Natalie: [33:40] I hope so.
Peter: [33:41] I don't know. I say that about a lot of things.
Jamie: [33:45] I wouldn't like to put one in a playing scale.
Peter: [33:47] Fair enough. Thank you so much for your time and your writing about this, and we've really enjoyed it, and thanks for taking so much time for us to day and being on the podcast.
Jamie: [33:56] So am I. Thanks so much.
Peter: [33:58] Be well.
Natalie: [33:58] So, what did you think?
Peter: [34:00] I have absolutely...I shouldn't say nothing. I have so little to say in this wrap‑up. We've written about this. If you've listened to the podcast for any length of time, you know how we feel about this. We're building a tool that surrounds this. I think that Jamie is a really smart guy.
Natalie: [34:29] I love the fact he has the background from the consultancy work. I think that is just amazing to bring into this as well.
Peter: [34:34] It is. It is really interesting how he got there, and now what he's doing with it, it's interesting to hear him respond to some of the, as I was calling at the third of the podcast, I guess, the naysayers.
[34:46] There's not much to say because people who understand this understand what it's all about, and understand the power of it, and it's like preaching to the choir. And I think that people that don't get it don't get it unless and until they start to dig deeper.
[35:03] I guess all I could say is I suggest that all lawyers, and in particular, litigators, start to dig deeper because our experiences, it has led to significantly better conversations around here between lawyers and with our clients.
[35:20] And I think that as Jamie was saying, and Ron Friedman said in his interview as well, I think that lawyers have a responsibility to do this. The time has passed ‑‑ long passed ‑‑ for it to be OK for us to rely on gut instinct and unsophisticated ways in dealing with litigation risks and analysis.
[35:43] Got anything else?
Natalie: [35:44] Nope. [laughs]
Peter: [35:45] Bye, everybody.
Natalie: [35:47] For this episode show notes and transcript, and how to satisfy your law society CBD requirements, please visit our website at buildingnewlaw.ca.
[36:03] We'd love to hear from you, and if you have any feedback, feel free to send an email to email@example.com or come and find us on Twitter @buildingnewlaw. Don't forget to subscribe on iTunes, our website or wherever else you get you podcast.
Peter: [36:15] Thanks for listening to the Building New Law podcast. Brought to you by Counter Tax Lawyers. To learn more about Counter, go to countertax.ca.
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