The prediction fallacy!
by Philip
When Mr Rumsfeld was asked about the Iraq invasion and the militant insurgence, he told the questioner when planning the Iraq war, there are “the known knowns, the known unknowns, and the unknown unknowns.” This phraseology was subject to much derision by the UK media, but really all Rumsfeld was doing was articulating any planner’s limitation when planning or predicting the future. The scale and force of the militant insurgency was for Rumsfeld, an unknown unknown, that could not be foreseen prior to the invasion therefore by inference the Bush/Blair Iraq invasion was sunk by an insurgency that could not be predicted. Or put simply, it was not my fault gov.
Very interesting, you might say, but what’s this got to do with employment law? Every client with an employment law case wants to know the prospects of success, preferably giving numerical odds. I always have to suppress a wry smile when I hear, as I have heard, a Barrister sagely opine that a case has 54% prospects of success. Another case, an eminent QC said my client had a 25% prospects of success. Of course as it turned out both predictions were wildly out.
In a Tribunal case, you base your prediction on, probably without realising it, known/knowns, and known/unknowns. The known knowns are the facts that are agreed and any settled law that can be applied to those facts. The known unknowns are any conflicts of evidence and which way they are likely to be resolved. Another known/unknown is the fact that a tribunal is an industrial jury and built into the system is the acceptance that two different industrial juries could come to the opposite conclusions on the same evidence. When you explain this to clients the usual reaction is “well it’s a bloody lottery isn’t it?” At which point you valiantly defend the system, but concede that any system of law involving judgment by human beings does have, how shall we say, an element of chance.
What’s even more difficult, if not impossible, is quantifying the probabilities in any case of unknown unknowns. Two cases that I have been involved with have had previously rosy prospects torpedoed by the deaths in one case, before the hearing, and, in another case, during the hearing, of key witnesses. Absolutely tragic for the witnesses and their families but fatal to my carefully worked out prospects of success. Tribunals like witnesses to be sworn in and their evidence tested by cross examination. Very difficult when the witness is pushing up daisies.Two deaths of key witnesses in fifteen years, how can you factor that into any calculation of prospects? Another unknown unknown is that the law might change during a case. The Court of Appeal may, for instance, overturn an EAT judgment you were relying on to support your advice and prospects of success opinion. Another extremely difficult one to predict.
Therefore in giving advice I say to my client that my judgement is that you will win (or lose) but there are factors of which I have no control over that may alter the outcome. If I am wrong and you lose (or win) the downside (or upside) is as follows. Cases, like life, can be very predictable but also very unpredictable.
Getting back to what Mr Rumsfeld said about the insurgency in Iraq being an unknown/unknown, if you cast your mind back in time, by reading the Commons debate ,the fact that Iraq would descend into chaos was widely predicted at the time by many people from all shades of political opinion.Mr Rumsfeld is someone many people would like to cross-examine.
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