From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
As a student of decision errors in litigation, I was happy to see another empirical study come out this week confirming what we already know with increasing confidence – even well-trained lawyers are subject to the cognitive errors that throw humans’ calibrations off target. We all have to be confident to get out of bed. Parties assigned to buy or sell a house, car, or lawsuit reach different valuations depending simply on which side of the trade they are assigned. And if we think we have some measure of control over the outcome, of course our chances of reaching it are increased. Add to that the ethical obligation of zealous advocacy and you have the caldron from which overly optimistic case assessments flow.
In Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, four psychologists (one is also a law professor) make a series of observations based on collected research and their own sample of 481 attorneys across the country. Each attorney was asked to state a minimum goal for cases set for trial in six to 12 months, and to self measure their confidence in reaching that outcome. The well-written statistical paper dove into the following areas:
The authors agree in the context of litigation with another famous study: “It can be argued that people’s willingness to engage in military, legal, and other costly battles would be reduced if they had a more realistic assessment of their chances of success. We doubt that the benefits of overconfidence outweigh its costs.”
This study found clear evidence of unrealistic litigation goals with no calibration improvement when ask to consider case weaknesses that could derail those goals. Mediators and settlement counsel help offset these rosy assessments and tools are being developed that allow attorneys and parties to check their assessments against historical data and known decision error rates. More about that soon…
JAMS ADR Blog by Chris PooleI’m a lawyer and have been a full-time mediator for more than 20 years. Before I went to law school, I spent 10 years working...By Peter Woodin