Stuart S. Nagel


This article covers three important aspects of litigation strategy. The first part is concerned with varieties of sensitivity analysis in civil and criminal cases. Sensitivity analysis refers to how the bottom-line conclusion of going to trial, accepting a settlement, or choosing another alternative is affected by changes in the inputs, which mainly relate to such matters or criteria as (1) the predicted damages, (2) the probability of receiving them, (3) the settlement offered, (4) the litigation costs, and (5) the settlement costs.

The second part deals with the use of decision matrices and microcomputers for analyzing litigation-strategy decisions, including sensitivity analysis. A decision matrix involves putting (1) the alternatives to be decided on the rows, (2) the criteria for deciding among them on the columns, and (3) the relations between the alternatives and the criteria in the cells.

The third part deals with the leading alternative to the decision-matrix approach to litigation strategy. That leading alternative is the decision-tree approach. A decision tree tends to involve only two alternatives. At least one of them branches into various paths toward various outcomes. Each path may have different probabilities. Each outcome may have a different monetary value.