The National Law Journal reported yesterday on SettlementAnalytics and their predictive algorithms. “The world’s first quantitative legal measurement to indicate the likelihood of a lawsuit proceeding all the way to trial and adjudication” according to the company.

I am profoundly skeptical.

Or perhaps more accurately, I can easily imagine distortions (or worse) masquerading as mathematical truths. Even the possibility of self-fulfilling, or at least not error-correcting, prophecies.

Perhaps the company does not make the claim I fear they are making– that they can predict with confidence, from the outside, at any given point in time in the arc of litigation, whether a specific case  will or won’t settle, and even more dubiously how, when, and on what terms it will settle.

Perhaps they make no such claim. Perhaps I need not fear garbage-in-garbage out. Perhaps I need not fear the omission of the multitude of factors I’ve seen real life parties weigh that would not typically appear in an economic analysis. Perhaps their algorithm incorporates the larger business contexts of all of the relevant players, their public and private concerns about precedent, the other opportunities and risks they see that might tie up human resources or capital, the potential for publicity, the interests and skills of the lawyers involved, the shifting landscape of decision-makers and their available information, etc etc etc.

It’s possible that the exercise of describing the context for a piece of existing litigation, as must surely be a piece of any program like this, will help the parties to prepare more strategically and thoughtfully about the full potential arc of the case’s life, along with the various potential outcomes along that arc. If that’s the effect, then this is great. Even if the product of the program’s calculations are questionable.

But if it’s essentially an app that takes a few data points and predicts the likelihood of a case going all the way to trial (an eventuality that is not terribly common in any context, of course), I guess I am at least initially reminded of the “compatibility tests” seemingly found in approximately a million magazines every month: “Answer these ten questions about you and your boyfriend/girlfriend/pet/conditioner, and we’ll tell you if he/she/it is the one you will be with forever more…”

Michael Moffitt has been Dean since 2011 and a member of the Oregon Law faculty since 2001. Before coming to Oregon, he served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at Harvard and Ohio State. Michael Moffitt has published more than two dozen scholarly articles on mediation, negotiation, and civil procedure. He is also a contributor to ADR Prof Blog. He is a devoted but mediocre snowboarder, an aggressive tennis player, and a happily exhausted parent.