C3PO: Sir, the possibility of successfully navigating an asteroid field is approximately 3720 to 1!
Han: Never tell me the odds!
Earlier this month, meat maker Cargill, Inc. recalled 36 million pounds of ground turkey after a salmonella outbreak had led to 78 reported incidents of sickness, and a single death in California.
On average, 8.4 people in California die per day from car accidents. Over 32,000 people died in car wrecks nation wide in 2010. No one has issued an industry-wide recall on all automobiles and shut down the interstate highway system.
We freak out around guns, yet only about 640 people a year die from accidental gun shots.
The fact of the matter is that people are bad at judging risk, especially when we get into the area of tiny chances of catastrophic harms. 8.4 auto deaths per day in California may sound like a lot, certainly when compared to salmonella. But, it's just 0.9 deaths per every 100 million miles driven. That's pretty damn safe. Better than deaths per 100 million pounds of ground turkey eaten. Simple human error and undercooking will result in more deaths.
Lawyers are not immune to making bad risk analyses. In fact, given their reputation for being terrible with numbers, we can probably expect them to be worse than the general population. However, you don't need to be able to do complex computations to figure out if you're spending your time (and client's money) wisely. All you really need to do is occasionally stop and think how likely it is what you're doing will matter at all, what the harm will be if you don't do it, and what the cost of performing the task is.
Take trial advocacy. A motion to dismiss looks like small potatoes next to a full blown trial. When you're allocating your resources, you may think that it's not worth throwing everything behind your 12(b)(6) motion. You'll make an honest go at it, but aren't going to be staying up past midnight or working weekends.
But, try plugging that into a little risk analysis. You're running the risk of a full blown trial with massive expenses for your client. Every case if different, but if you think you have a reasonable argument to make early on to get a case against your client dismissed, you should consider treating it like a goal line stop. If the client questions the hours you're billing on a little ol' preliminary motion, explain that if you win here, the whole thing goes away and the client will save a boat load of money.
The biggest blindness to risk analysis in the legal world though has to be document review. Megacorporations hire armies of lawyers to pore over millions of pages of documents, and they're not always basement dwellers. When their big go-to firm has people who need more hours to bill, they get the work first, because the profit margin on an hour of junior associate work is much bigger than for basement temp work. A diligent document reader will likely cost the client about $1 per page. Get several hundred thousand documents, millions of pages, and the cost skyrockets.
They want everything read though. The people in charge are always on the lookout for that "hot doc," the one smoking gun that will make or break the case. The fact of the matter is it rarely exists. Even when you think you've found it, it's likely far less valuable than you imagine. Yet, businesses spend millions of dollars searching for these bits of electronic evidence. Sophisticated search engines could easily sort through the documents and pull out the 1-2% most likely to matter, and do it at a fraction of the cost. Instead, they decide to sift through 36 million pounds of ground turkey hoping to prevent 1 more death.
These two examples are actually quite good for the lawyers though, they get to bill a lot more. If you win the motion to dismiss, you need to make sure you've gotten in as much billable work as you can (and the client will happily pay, since you avoided the bigger expense of trial). If you lose, you billed a lot of hours, and get the entire trial on top of that. Just make sure to get a retainer from the client, they might not be too terribly happy with you.
There are times when bad risk analysis won't work in your favor. The next time you're working late at night going over a stack of cases you've pulled of West or Lexis that aren't likely to be relevant, but you know, maybe ...just maybe... be sure to take a moment and ask "Have I checked Google for news on this?" and "Have I briefed the client on proper courtroom attire?"