A Level of Uncertainty and Unpredictability
Most of the time, when parties go before a judge or other Court official asking that person to make a decision, either at trial or in pre-trial motions, there is a level of uncertainty and unpredictability about what will happen. When it is crystal clear that a party has either a definitively winning or a definitively losing position, chances are that the opposing parties and lawyers will have tried to resolve it and settle the motion or the issue or the whole dispute before that point. Often, it is unpredictability and uncertainty that prevents matters from settling. There are a number of reasons why matters may be unpredictable and outcomes uncertain.
There are often gaps in the law. The application of decided case law or statutes written laws to the facts of a case, the wrong that has been done, or the remedies sought, may be uncertain. Often, lawyers are drawing analogies from established case law and sometimes those inferences are not crystal clear.
Early in a dispute, and sometimes even quite late in a dispute, critical facts and information may be missing. This sometimes makes it hard for parties to settle the matter and if this state of affairs continues on into trial, it may make it very difficult to predict what a judge will do.
Occasionally witnesses who appear quite steady and confident during preparation get a bad case of the nerves in Court and provide weak or unconvincing testimony. One of the greatest causes of unpredictability is not knowing at the end of the day how witnesses will perform.
In some situations there can be different but reasonable interpretations of events. Sometimes the facts can be very clear, but the legal concepts that give either the rights or the remedies may be vague or fuzzy enough that it is impossible to predict whether or not the facts support the rights, remedies or defences that are sought.
In complex, factual matters, it can be difficult to predict which particular facts a judge will rely on. Typically, a judge may be presented with many different facts upon which they could base a decision. It is not at all uncommon when reading the judgments of the Courts to realize that a handful of facts have taken on very large importance to the Judge. Sometimes, one can predict what these critical or key facts will be. But sometimes, counsel and parties are surprised to find that a relatively minor fact in their estimation has taken on much more significance for a Judge.
Despite all the sources of uncertainties and unpredictability set out above, broadly speaking, litigation and dispute resolution is a rational exercise. Many things about it can be predicted. But, it is unrealistic to expect total certainty in many situations.