By James T. Berger
Attorneys and clients trying to decide whether or not to do a survey in an intellectual property matter such as trademark infringement might find that simple probability theory might provide an answer to their decision dilemma.
A common scenario that I encounter quite often as a survey expert is whether or not to perform a survey based on the expected costs that will have to be incurred. Clearly plaintiff or defendant attorneys and clients have options in pursuing this litigation. They can try to settle. They can proceed without doing a survey. They can let the defendant attempt a survey and try to counteract it with an expert's critique.
In every case, knowledge of probable outcomes can be a key in the quantitative analysis because one can assign possible outcomes and one can pretty tightly lock in costs. The smart and prudent attorney can do this kind of analysis and present his/her client with tangible and well thought out options.
In virtually every case where damages are involved, an attorney can take a look at those potential damages and make a ballpark determination as to what chances the attorney has of achieving certain results. For example, let's take a simplistic trademark infringement case where, if the plaintiff won, the maximum judgment or settlement that could be obtained would b...