When is Litigation Like Las Vegas ?
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When is litigation like Las Vegas? The more cynical among us might answer “Always,” arguing that the outcome of any trial is a crapshoot. But for the rest of us, “always” is not the right answer. Most believe there is a relationship between the outcome of a trial and the hard work that went into preparing for it. Most believe that our actions influence the outcome. But there is an aspect of litigation that is almost exactly like Las Vegas, at least from a mathematical perspective, and that aspect is first pass document review.
Las Vegas is at once the land of probability and a haven for the hopeful denial of probability. I am playing blackjack, and I am winning. I have fourteen points in my hand, and the dealer is showing a ten. Do I hold or ask for another card? The odds tell me one thing, but my gut tells me another. Or maybe I am playing craps and wondering if I should double down since the person rolling the dice seems to be hot. Can we really beat the odds? What is the probability that the roulette wheel will make my number a winner? If I close my eyes and cross my toes, will that improve my chances?
All of these questions deal with the probable occurrence of random events, events upon which my actions have no impact. Surprisingly, the same mathematics that determines winners and losers in Vegas impacts first pass review. Consider an example: I have collected 1,000,000 documents, and I suspect that about 15% of them are relevant to the case issues. I want to read all of the relevant documents and none of the nonrelevant ones. Query: How many documents will I have to examine before I find all of the relevant ones? Or stated as an event threshold, how likely is it that the next document I look at will be responsive?
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