I get asked this question a lot: “What are my chances?”
Often it comes with a request for some kind of percentage.
“Do I have more than a 50/50 chance?”
“This is like 90% right?”
“Do I have any chance to [insert solution here]?”
The question is a good one, but the answer is complex. As a lawyer, the most important thing I can do here is give as clear and accurate an answer as possible. Having some concept of the odds of success helps people make informed decisions about what to do, and helps maximize outcomes. And yet, it is very hard to communicate exactly what those chances are.
What’s my percent chance to win?
When I started practicing criminal law in Ottawa, I never gave any client a percentage. I always explained that in law, estimating any percentage is an inexact science, and could lead to the possibility of misleading the client. I still prefer not to use percentages; however, I occasionally do now. When I do, I make it clear it is an estimate.
I explain that due to the nature of legal cases, the percentages are constantly changing. They change when new evidence arises; they change when one judge walks into the room instead of another one; they can even change when a witness or police officer says one word differently than what had been expected. And so I often liken this to a game of Texas Holdem Poker. Each card that appears leads to numerous different outcomes — maybe dozens, maybe even hundreds. Each time a new variable occurs in a legal case, it also changes the probability of success, even if only by a small amount.
I stated above that I don’t like using percentages but I occasionally do. Why did I change my mind?
Well, I approached this decision the same way I do my cases. I asked, what are the risks and disadvantages? First, a client could miss the part where I say it’s an estimate and have false confidence in a 75% of success, when it could be 85% or it could be 65%. A client can also disregard my explanation that the probability of a favourable outcome will constantly change as the case progresses.
There’s a lot at stake. I don’t want a client to be unhappy with my services because I told him he had a 90% chance of success but he happened to be in that 10% where something goes wrong. I want to have 10 clients who are satisfied with my work, not 9 clients who are happy and one who feels that I deceived him.
Then, against this risk profile, I considered the advantages. Possibly the most important advantage of providing a percentage is that it helps the client understand how I see the case. It gives context to my advice, and helps a client understand how big a risk we’d be taking with his future, and why I’d be willing to do that.
There is another important part of the equation. The client needs to know that I understand his goals and the outcomes he wishes to avoid. He may wish to have a charge completely dismissed, but may decide to plead guilty if it means avoiding the risk of going to jail. So what is right for my client? Should he plead guilty? If I do that, I meet one objective (avoid jail) but miss out on another one (have the charge completely dropped).
In order for clients to make informed decisions on what to do, they need to know how I see the case. Giving an estimated ‘percentage chance’ can help them understand my professional perspective.
Ottawa Impaired Driving Case
Here’s a practical example. I once had a client charged with impaired driving. He had no prior criminal record. And, like most of my clients in this situation, he wanted to:
- avoid a criminal record,
- avoid losing his licence,
- avoid the fine,
- avoid the insurance rate increases associated with a conviction, and
- not be branded a “drunk driver”.
His priorities, as I saw them, were in that order.
As I worked on the case, it became clear that we had one small argument and one big argument — both of which could theoretically result in the charge being thrown out. The bigger argument initially had a better chance of success, but that soon changed, for three reasons. Firstly, the Supreme Court released a decision which meant judges would be more likely to reject this argument. Secondly, we received a new piece of evidence (a police report) which supported a rebuttal to our argument. Thirdly, I found out which judge was likely to hear the trial, and it was a judge who tended to side with police officers (which ran contrary to this argument).
However the smaller argument became more significant when a toxicologist’s report showed that my client’s breathalyzer results (one of which was 104 mg of alcohol – the legal limit being 80) meant that at the time of driving, my client’s alcohol content would have been at or between 80 and 115 mg of alcohol. Therefore, it was established that he could have been at 80…or 81, or 82, up to 115. All except for one of these possibilities meant that my client was guilty.
When I raised this with the prosecutor, they responded by offering to allow my client to plead guilty to a traffic ticket offence: careless driving. They sought a fine of $1000 and a 3-4 month driving suspension.
How did this measure up against my client’s priorities?
Well this wasn’t a bad outcome.
- He’d avoid a criminal record. Goal attained.
- He would lose his licence, but it would only be for a maximum of 3-4 months (and possibly less if I could persuade the judge to impose less or not impose it at all). The worst case scenario was better than the one year prohibition he would face if found guilty of impaired driving. So it was a good, but not a perfect, outcome.
- He would pay a fine, but it would be very close to the amount he would pay if he were found guilty of impaired driving. So this goal would not be met, but considered for its value as a “trade-off” for some of the more important stuff.
- His insurance rates would likely increase a lot, but probably not as much as in the case of an impaired driving conviction. This area I can’t assess very well since it depends on the business and legal decisions of insurance companies, and I always recommend my clients look elsewhere to better understand insurance.
- He wouldn’t be an impaired driver. So that’s a plus.
Enter the percentages. If I took the deal, there was a 100% chance that we’d achieve goal #1. As for goals #2 and #3, it would depend on the judge. The likely worst case scenarios weren’t so bad, and the judge even had the ability to give a lower fine and a lower driving suspension, or none at all.
However, given the toxicologist’s report, I was of the view that even the tiny possibility that my client could have been at 80 mg of alcohol (and thus not “over 80”) meant there was reasonable doubt. I estimated there was a 5% chance that my client could be convicted. On the slim chance that he was, there was even less chance that his conviction would be upheld on appeal. But an appeal would cost my client more money.
Once I explained the risk to my client, he was willing to take it. The Crown eventually backed down and withdrew all charges. We accomplished all five of our goals perfectly.
Now, had the risk of losing (if we rejected the deal) been greater (20% or 30%) many, if not most, clients would have taken the deal despite the trade-offs. In doing so, I am one of the few lawyers I know of who has rejected a careless driving charge as a way to resolve a drinking and driving case in Ottawa.
One more general consideration
I could give countless examples of how the implied odds of a case dictate the right decisions. I will end with one general case.
People (like Crown prosecutors) often ask me why I go to trial in many cases where I am likely to lose. Why chance it? There’s a good reason.
In many cases I am given a choice to plead guilty and receive XYZ as a sentence, or go to trial. If I have assessed a high probability that after trial my client would get XYZ (or something close to XYZ – be it a fine, suspension, jail, a criminal record, etc.) to me, this is a no-brainer. Assuming the client is aware of the weakness of the case and doesn’t mind paying me to conduct a trial, and assuming there aren’t any extraneous considerations mitigating in favour of a speedy resolution, why would my client want a 100% chance of getting found guilty and getting XYZ? Even in the weakest of trials, the chances of winning are better than 0%. I’d estimate that I’ve gotten some form of “win” in 60% of my cases where it looked like we didn’t have a prayer (perhaps define this as less than a 10% chance of winning). This may be the subject of a different article, but all sorts of things can happen at a trial — ranging from purely logistical (not enough resources to hear the case) to personal (witnesses not showing up) to evidentiary (a witness unexpectedly saying something helpful to my client, for example). And sometimes a deal that was not previously offered gets offered at the last minute. That is a win too.
I’ve said it before and I’ll say it again. I don’t like telling my clients percentages because I don’t want them to rely on them the way they can rely on the precision of numbers in other situations. But since the odds of an outcome form an integral part of my decision making, my clients, (if it assists them) are entitled to know what goes through my head when I am advising them