An interesting study written up in Psychology, Public Policy, and Law found that lawyers are not good at predicting case outcomes. They tend to be overconfident in predicting how cases will turn out and, even when considering how their cases went in retrospect, they think they turned out better than they did.
Lawyer overconfidence may not seem like news, but whether lawyers have an accurate sense of how their cases will turn out determines how they handle the case, what resources are used, and eventually how satisfied their clients are with their lawyers and the judicial system. So, while it is not news, the question of what to do about it is worth considering.
Interestingly, this propensity to be overconfident does not vary based on years of experience of the lawyer. More experienced lawyers are just as overconfident as newer lawyers. Women, however, tend to calibrate (i.e., provide high, moderate or low confidence estimates accurately as compared to outcomes) better than men and criminal lawyers tend to calibrate a bit better than civil lawyers.
While the authors talk about “calibration,” I think this could be called the “reality ability.” This is a trait that serves lawyers well in mediation (and that mediators appreciate). Do lawyers have enough reality ability to educate their clients about likely outcomes? Does one lawyer’s reality ability encourage the opposing side to see the case from the first lawyer’s perspective or is the lawyer so far outside the realm of reason that discussion of likely outcomes pushes away from settlement rather than toward it?
In mediation we value reality testing – helping each party consider the likely outcomes either through questioning (in a facilitative approach) or by providing assessments (in a more evaluative approach). The authors posited that having lawyers consider the possible negatives of their case would assist in calibration. In mediation terms, they expected a little reality testing would develop more reality ability. They found, however, that considering the downsides of a case did not have an effect on this ability to predict the outcome. Lawyers, especially male lawyers, were still overconfident.
One of the authors’ suggestions is that early neutral evaluation (ENE) might be particularly effective in assisting the lawyers in calibrating. It is provided early in the case, when anchoring to a particular outcome is not as strong, and can be provided to the more senior lawyers who may be less likely to seek professional input, but who need it as much as younger lawyers according to the findings in this study. Along these same lines, the authors suggest that more requirement of other ADR approaches could help address these calibration problems, or lack of reality ability.
I recommend reading this interesting study. It raises important issues no matter which perspective you are coming from: litigator, neutral, judge or designer of court ADR programs. There are also a blog post, and article and a press release about it that you might want to read: Points of Law, the ABA Journal and Charles Sturt University.
Jane Goodman-Delahunty, Australian Graduate School of Policing and School of Psychology, Charles Sturt University, Manly, New South Wales, Australia;
Pa¨r Anders Granhag, Department of Psychology, University of Gothenburg, Gothenburg, Sweden;
Maria Hartwig, Department of Psychology, John Jay College of Criminal Justice, New York;
Elizabeth F. Loftus, Psychology & Social Behavior, Criminology, Law & Society, Cognitive Sciences, and School of Law, University of California at Irvine.
Tags: early neutral evaluation (ENE), lawyers, mediation, Reality testing
Thank you, Susan, for this thoughtful essay.
Were clients legal experts, then perhaps they might make decisions according to the merits of cases. Since they are not, however, predictability becomes tied to other drivers.
Emotion is a strong driver for all parties. Perceptions of risk reduction or elevation affect decisions. When attorneys or mediators communicate with parties, they do not control which statement made will have significant impacts on party reasoning. If the party speaking has high awareness and skill in presentation, there may be higher potential for emphasizing certain features of the case to manipulate the emotional capacity. On the other hand, hidden elements that contribute to emotional drivers well may dilute what is “typically predictable” and strengthen unknown drivers resident in the parties.
Unknown Events also affect the rational process itself. A family sickness, a divorce, career changes, which drain capacities for investing time, thought, emotion, may affect party decisions, offsetting whatever attorney presentation elements ordinarily have higher predictability. It may be important for attorneys constantly to monitor changes in party circumstances, which can be used and incorporated in the party’s best interests. Sometimes winning, even a case with presenting factors and elements suggesting strength and a more than less predictable outcome, may not be more appropriate than withdrawing or settling, for the sake of other factors.
Attorney personality and, as noted, gender do have an important role in these processes. The capacity to listen–to all parties involved in the process, including the opposing counsel–has a high level of predictability itself in determining whether or not the attorney can perceive, grasp, and appropriate use elements appearing in the case that may be non-legal, or, as important, perceptions or positions of parties useful for settlement. The most brilliant attorney’s personality may be an inhibiting factor, and itself a predictable negative factor adverse to his/her party’s interests. Regarding the latter, parties are not incapable of discerning particularly troublesome attorney personalities, methods, and capacities, which when combined with post-case perceptions can have either a positive or negative impact on referrals.