Litigation and Mental Models

by Lee Gesmer on February 6, 2019

Litigation and Mental Models

I’ve been reading about mental models. Everyone has these, whether they are aware of them or not. Doctors, engineers, sports coaches, electricians, architects, they all have them. Gary Kasparov has them for chess. Warren Buffett for investing. Nancy Pelosi for legislative politics. Bill Belichick for football (Tony Romo too). And, whether they are aware of it or not, lawyers have them.

Here’s Charlie Munger’s description of mental models:

you can’t really know anything if you just remember isolated facts and try and bang ’em back. If the facts don’t hang together on a latticework of theory, you don’t have them in a usable form.

You’ve got to have models in your head. And you’ve got to array your experience—both vicarious and direct—on this latticework of models. You may have noticed students who just try to remember and pound back what is remembered. Well, they fail in school and in life. You’ve got to hang experience on a latticework of models in your head.

You can read what Shane Parrish and James Clear have to say about mental models at the links attached to their names.

This got me thinking about mental models for lawyering. Of course, the only ones I’m familiar with are my own. I know I have a bunch of them – how to evaluate a case, how to conduct discovery or a deposition, prepare or oppose a preliminary injunction or summary judgment motion, prepare an opening statement, prepare for trial, conduct direct examination, conduct cross-examination, research a legal issue …. But, I’ve never spent much time thinking in any detail about my “latticework” of mental models.

Richard Feynman

I thought it would be interesting (for me, at least), if I took a  shot at this for one mental model. I chose what I think is the easiest of the several I listed above – how to evaluate a new case. So, here goes.1

A Case Evaluation Mental Model

First, think about jurisdiction and venue. Does the client have personal jurisdiction over the defendant in Massachusetts? If so, where does venue lie, state court or federal court (diversity, federal cause of action)? If I file in state court can the defendant remove the case to federal court? Which court do I prefer, and can I exert some control over this based on the claims asserted (e.g. assert/not assert a federal claim)?  Either way, state or federal, which court has venue? Do I want to handle a case that must be filed or defended in Springfield, Mass., an hour-and-a-half drive from my office?

Look for an arbitration clause. If it appears to be enforceable, it can change my thinking on many of the issues described below. If the clause calls for a three-member arbitration panel, warn the client that the potential cost of the case may be about to sky rocket, and that a three-member panel complicates the case in a variety of ways.

What are the disputed/undisputed facts and potential causes of action? What is the black letter law on the legal claims? Where is the law uncertain or unclear and how might that effect the case? What research will I have to do to update myself on these issues and what resources will I use to do it? Can I start identifying strengths or weaknesses on each side of the case? Do I have adequate expertise in the relevant area of law? If not, what will it take for me to get up to speed? Can I do that economically, given the cost constraints of the case?

Who is on the other side of the case, if that is known? Do I know that lawyer, or her reputation? What is my experience with the opposing law firm. Is it a thousand-plus lawyer firm or a solo?

What are the economics of the case? What are the relative resources of the parties? Is my client is financially weaker than the adverse party? If so, how big a problem will that be for my client?  Is the client hinting that it wants representation on a full or partial contingent fee basis? Is that the client’s only option? Is that of interest to me? How will that work for my firm economically?  When will I be in a position to give the client a cost estimate? What more do I need to know to provide an estimate?

How much electronic evidence is involved? How will that be handled as a technical matter, how will if affect cost, and what evidentiary issues does it raise?

How experienced and savvy does the client appear to be? Will the client be easy to work with or difficult? Am I being asked to replace another lawyer (often a negative indicator)? Does the client have an unrealistic view of the merits of the case? How likely is that to change as the case progresses? Will I be able to persuade the client to see the case objectively for purposes of settlement? Is the case motivated by emotion/passion or money?

Is the case likely to involve a motion for preliminary injunction? A motion to dismiss? A motion for summary judgment? How should I factor these into a cost estimate? Sometimes the client shows up with a motion for preliminary injunction against it already pending. This is typically a fire drill situation where time is short and the focus must be on defending against that motion before other factors are considered. How does that urgency affect my decision to take the case?

Is the case likely to involve a jury trial? If so, how is a jury likely to see the equities based on “person on the street” values? How is a jury likely to view my client in term of socioeconomic status and credibility? Does the case lend itself to a “story” that I could present persuasively in my opening statement? In that regard, I begin to think about the “theory of the case” as early as possible.

Do I need to interview any witnesses before taking on the case to get a better handle on the facts or to give the client a better evaluation of the case? How many witnesses will be involved? Are they friendly or unfriendly? Are any witnesses out-of-state, requiring travel to take their depositions and increasing the cost?

Does the case lend itself to mediation? The majority of cases that go to mediation settle – at what stage of this case should I recommend that we pursue mediation, if at all? Is early mediation an option?

If the case does go to trial how likely is an appeal, which could delay resolution for an additional year or two? At what point should I mention this possibility to the client? How does this risk factor into my decision to take the case on a full or partial contingent fee basis? On what terms should the full/partial contingent fee agreement cover an appeal?

Can I (or my office) handle the time and resource demands of this case? How will I staff the case? How do those demands impact my overall case load?

What is my initial impression of the case? Once you get deeply involved you can quickly lose sight of this and forget it. But, this is how a judge or jury is likely to evaluate the case. It’s important to capture this before I start thinking about the case at a nuanced level a judge/jury is unlikely to approach. First thought, best thought.

Keep in mind: there are almost always unknown unknowns. That’s what helps make it interesting!

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If you are a client and you’re describing your case to a lawyer, this will give you some idea of what may be going through her head. If the lawyer appears to be thinking hard, now you know why.

Do you have a law-related mental model that you’d like to share? If so, email it to me at lee.gesmer@gesmer.com and perhaps I’ll feature it in a follow-up post.  No “this-is-my-mental-model-when-I’m-meeting-with-a-lawyer” humor please! 🙂

  1. Don’t mistake this for a “list.” It’s a thought process used to examine a problem. A change to any one element would ripple through the remaining elements, sometimes significantly. And, as any experienced lawyer will be quick to point out, this is greatly over-simplified.

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