Marc Firestone, the general counsel of Kraft Foods, told an audience at the SuperConference about his law department’s steps to define what his lawyers mean when they use non-quantified terms. Non-quantified terms – called “estimative language” by the National Security Agency – include “strong probability,” “poor chance,” “pretty good odds,” “likely” and other expressions that convey a probability but can have widely different interpretations between speaker and hearer.
First, the Department formalized a scale so that each variation appears on the scale. The Department reviewed this with their clients so that the range of likelihood was narrowed as much as possible. People mean the something similar when they use a phrase.
Second, the Department set itself the goal to try harder to find data to support any particular use of estimative language. With data, even partial data, it becomes easier to be more precise with words.
Finally, the Department has adopted a practice of providing a degree of confidence in its assessments of likelihood. “A win for us on this motion for summary judgment is reasonably likely (a 60-70% chance) and we are moderately confident in that prediction.”