In his recent book, “Litigation is War,” Fredrick L. Whitmer suggests effective advocacy in litigation mirrors many tactics common in strategic military preparation. On a battlefield or in a courtroom, quantifying the likelihood of uncertainties that may hinder or facilitate a particular line of attack will provide an advantage to the party holding such information. Consider this scenario: you are a plaintiff bringing suit against a corporation for ten million dollars, your trial starts in two weeks, the corporation has offered to settle for one million dollars, but you believe that you deserve more; do you accept? There is no easy answer, but there is a question that any lawyer or client in that situation should reflect upon: How can I acquire the most accurate, cost-effective data about the viability and value of a particular case or cause of action? This article suggests a market designed to translate investments in various outcomes into predictions about the likelihood of various outcomes of a given situation. This article will identify some of the major unmet needs of litigants today. It will explain how prediction markets, a new method of collecting research used for predicting outcomes in a wide variety of areas, can be crafted to assist clients in their litigation strategy and settlement negotiations. Finally, it will provide a sample market based on the uncertainties of an actual case.
Market-Based Prediction Models as an Aid to Litigation Strategy and Settlement Negotiations,
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Available at: https://digitalcommons.pepperdine.edu/jbel/vol2/iss1/8