The D.C. Bar will be closed for the holidays December 24–January 1
 

Washington Lawyer

Legal Spectator: The S&S Quantification Chart

From Washington Lawyer, April 2008

By Jacob A. Stein

spectator

100% Religious Truth
Logically Based
Scientific Certainty Subject
to the Karl Popper/Thomas
Kuhn Tests
90%  
80% DNA
   
70% Beyond a Reasonable Doubt
Blood Tests
Fingerprints
60% Inductive Reasoning—All Swans are white, and then along comes a black swan
Reasonably Certain
Probable
Preponderance of the Evidence
   
50% Likely
Eyewitness Identification
More Likely Than Not
Lie Detector Evidence
   
40% Hunch
Doubtful
30% Uncertain
Hearsay
   
20% Admissions Obtained by Torture
There Is Some Basis
10% Perhaps
Possible
0% Religious Truth

We use the words likely, probable, and possible in evaluating judges, juries, and witnesses. We rarely consider the differences among these words. The place to look for an enlightening consideration of these differences, I suggest, is Webster’s New Dictionary of Synonyms published in 1968.

According to Webster, probable means there is sufficient evidence to be worthy of belief but not a matter of certainty. Likely means that to all appearances something is what it appears to be. Likely implies that something has many more chances in favor of its being true than the word possible.

[T]hus, the probable murderer is the suspect whose guilt is nearly but not completely established by the evidence; a possible murderer is merely one against whom suspicion is directed for some reason, or one known to have had opportunity; the likely murderer is the one among the possible murderers who, especially from a more or less superficial point of view, has had the strongest motive and the best opportunity, or toward whom the circumstantial evidence most distinctly points as the murderer.

Webster makes no attempt to quantify, mathematically, the differences. Nor do most lawyers. We do not think like scientists and mathematicians. We have respect for the human factors.

An illustration. There is a breach of contract trial. The plaintiff takes the stand and gives a convincing statement of the contract terms. His recall is excellent.

On cross-examination the lawyer for the woman defendant says to the plaintiff:

“You forgot something, didn’t you?”

“What do you mean, I forgot something?”

“Sir, you omitted to say that both of you were naked when the contract was discussed.” Ah, the human element. Maybe that plaintiff is not as credible as he would have been if he had his clothes on.

I discussed this quantification matter with Liam Sarsfield, an engineer and a mathematician. Liam quantifies everything. Wine, spaghetti, and the likelihood of getting to Mars. He suggested we do a quantification of probable, possible, and likely, and the other similar words. Here for your consideration is the S&S Quantification Chart. We think it is probably, but not likely, accurate.

David Halberstam, in his book “The Best and the Brightest” (1969), described how those close to President Lyndon B. Johnson estimated the likelihood that Vietnam could be saved by sending it more American troops. These people included Robert McNamara and Mac Bundy (the very brightest of the best). They liked to put things into numbers. They quantified their predictions.

McNamara said that the likelihood of success with more troops was 100 percent. It was Mac Bundy’s memo that tipped the scales:

We cannot assert that a policy of sustained reprisal will succeed in changing the course of the contest in Vietnam. It may fail and we cannot estimate the odds of success with any accuracy—they may be somewhere between 25% and 75% [!!] What we can say is that even if it fails, the policy will be worth it. At a minimum it will damp down the charge that we did not do all that we could have done, and this charge will be important in many countries, including our own. Beyond that, a reprisal policy—to the extent that it demonstrates U.S. willingness to employ this new norm in counter-insurgency—will set a higher price for the future upon all adventures of guerrilla warfare, and it should therefore somewhat increase our ability to deter such adventures. . . .

As things get complicated, quantification adds little predictability. We must rely on our need to cover our loyalties, personal advantage, the resources available, and proverbial wisdom.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.