Monday, May 17, 2010

Optimistic Forecasts

A new study published by the American Psychological Association asked lawyers six to twelve months in advance of trial to set their minimum goals for the trial outcome and their predicted chances of reaching that goal.  The largest percentage of lawyers who participated in the survey fell short of their goals, and also expressed over-confidence in their chances of reaching their goals.  Interestingly, the lawyers' level of experience did not produce better predictive results.  Also interestingly, women lawyers were somewhat closer to the mark in their predictions than their more over-confident male brethren.

I don't find these results surprising at all.  Lawyers must project confidence to their clients, otherwise clients will doubt whether their lawyer is on their side.  Lawyers also must believe in their own ability to make a convincing case, otherwise they will not make as strong an impression at trial. On the other hand, lawyers do not want their clients to be angry or disappointed about the results at trial, so they have reason to arm their clients with accurate information about their chances so that clients can make an informed decision about whether to settle the case or proceed to trial.

One of the purposes of mediation is to allow a neutral party to get such a message to the client, a message that the client's own lawyer may be uncomfortable or unable to make himself, but in most cases actually wants the client to hear and understand.  Mediation can also present an opportunity for one party to hear the other side's over-confident assessment of that side's prospects at trial, which can counter-balance the first party's attorney's predictions.  The mediator's challenge is to get the best available information about the value of a case across to each party without undermining the client's relationship with their own attorney.

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