Prediction
Predicting how a court will decide a question of law is, as explained, fraught
with uncertainty. Choice is a mental process. We do not have unmediated
access to this mental process and hence cannot claim fully to understand it. A
certain explanation or prediction of decision making is impossible because we
cannot know what occurs in the mind of a judge or legislator. In the ringing
words of Justice Brian: “Even the devil himself knoweth not the thought of
man”.
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This difficulty means that a lawyer often has to make a prediction to advise a
client and can only do their best. One option in making the prediction is to
choose one of the options as the most likely. Yet the prediction can be refined
by assigning a probability to each option. Obviously this probability is only an
estimate but it is the best we can do. To illustrate this, consider a case
involving interpretation where a provision has three meanings, Meaning 1,
Meaning 2 and Meaning 3. Having worked out the probability of each meaning
being accepted they can be set them out in a table as in the following example:
Meaning
Probability (%)
Meaning 1
25
Meaning 2
5
Meaning 3
70
Total
100
Figure 16.3 Meanings and Probabilities
While the measures of probability are only estimates, the table does convey
three important points. (i) The outcome is unpredictable. (ii) Each meaning has
some chance of being chosen. (iii) Some meanings have better chances than
others.
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Year Book 17 Edw Pausch f.2 (1477)
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