Legal Commentary

Your Lawyer?s Wrong:

By David Post

Over at The Chronicle, there?s a report on a new study, published in the journal Psychology, Public Policy, and Law, that purports to show that lawyers consistently over-estimate their chances of succeeding in litigation. [The original paper can be viewed and dowloaded here]. From the abstract:

Lawyers? litigation forecasts play an integral role in the justice system. In the course of
litigation, lawyers constantly make strategic decisions and/or advise their clients on the
basis of their perceptions and predictions of case outcomes. The study investigated the
realism in predictions by a sample of attorneys (n = 481) across the United States who
specified a minimum goal to achieve in a case set for trial. They estimated their chances
of meeting this goal by providing a confidence estimate. After the cases were resolved,
case outcomes were compared with the predictions. Overall, lawyers were overconfident
in their predictions, and calibration did not increase with years of legal experience.
Female lawyers were slightly better calibrated than their male counterparts and showed
evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers
were asked to generate reasons why they might not achieve their stated goals. This
manipulation did not improve calibration.

It?s not all that surprising, unfortunately, and squares with my experience (though it?s interesting to see it confirmed empirically) ? I?m constantly amazed, given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can persuade themselves of the rightness of their client?s cause.

[Thanks to Thomas Bartlett for the pointer]

Full post as published by The Volokh Conspiracy on June 07, 2010 (boomark / email).