Guest post from Joshua Baron.
To their clients, lawyers are like soothsayers. Their job is to peer into a crystal ball and predict what is going to happen in court. Lawyers and their clients have to make high-stakes decisions. “Should we take this murder case to trial?” “Will we get more money at trial than the defense is offering us?” “How much alimony will my spouse have to pay?” The scary truth, though, is that lawyers often don’t know.
61% of plaintiffs receive the same amount or less money at trial than they were offered before trial. That means that without even counting all the financial and emotional costs of trial, over 60% of those plaintiffs were wrong. They should have taken the last offer and they would have gotten a better result than at trial. On average plaintiffs in the study received $43,100 less than was offered before trial. Because of attorney-client privilege, it is impossible to know how often those plaintiffs’ lawyers advised their clients to take the offers and stay away from trial, but I suspect that it wasn’t very often.
What could possibly account for such a high error rate? There is growing research that shows that even experts fall into thinking traps called “cognitive biases” that impair their decisions.
A major cognitive bias that probably contributed to all those bad trial outcomes for plaintiffs is the “inside-view of the planning fallacy“. People who fall into this trap focus too much on the specifics of their case and too little on the statistical information that they know applies to similar cases. Nobel Prize laureate Daniel Kahneman has found that people who take an “outside view” when planning are more likely to make accurate predictions because the person making the prediction is less vulnerable to wishful thinking.
Kahneman provides an example of the inside-view of the planning fallacy. Kahneman served on a panel that was developing a textbook. He and the other members of the panel knew a great deal about the other members working on the book and about what they had to do. One year into the project, they estimated how long it would take to complete it and reached a consensus: two years. Then they took a different approach to predicting how long it would take to finish the book. Kahneman asked the Dean of Education to think of similar projects and how long they usually took to finish. He responded, “‘You know I’ve never thought of it, but actually not all of them wrote a book.’ . . . [R]oughly 40 percent of the groups he knew about never finished.” Of those that did finish, he could not “think of any group that finished in less than seven years.” How long did it take the group to finish the book? Eight years.
This is an example of a case where the people on the panel had a lot of information. But the information they had distracted them from the information they should have focused on. They should have fought the tendency to look at all the specifics of their own project and instead used other similar projects as a reference point.
Taking an outside view could be relatively simple in some areas of law practice like personal injury. There are comprehensive databases – including a Lexis product called “What’s It Worth?” – that help lawyers place their case on a continuum of similar cases. But Kahneman’s research shows that even when presented with strong relevant statistical evidence about similar cases, most people will focus on the particulars of their case and ignore or undervalue the statistical information that they have.
Remarkably, though there is statistical information about some practice areas like personal injury, there are no similar statistical products for criminal defense.
Think about that. A criminal defense lawyer has to try to guess the outcome of a trial that might send his client to prison for years, and she can’t even find statistical data about the outcome of similar cases at trial.
Why might personal injury lawyers have access to statistical information that isn’t available to criminal defense lawyers? It might be a sad case of economic incentives. Personal injury lawyers have a strong stake in the outcome of their cases because they usually get paid on a contingency. They receive a percentage of their clients’ recovery. The lawyers might eventually ignore the statistical information, but they want to have all the information they can before they make a decision about going to trial.
Criminal defense lawyers, on the other hand, do not work on contingencies. They do not have to serve a percentage of their clients’ sentences. If they did, I have a feeling that they would pay for a database of statistical information on trial outcomes in similar cases.
At the end of the day, clients have to rely on their lawyers to help them decide if trial is a good idea because they don’t have anyone else they can turn to. While lawyers know more than their clients about the likely outcome of their cases, they should be modest and recognize that an outside view is probably more accurate. Rather than focusing on the specifics of their case, they should try to compare their case to the available statistical information about similar cases. Then, their clients will be able to have more confidence in their predictions and lawyers won’t have to rely so much on magic.
Joshua Baron is a criminal defense lawyer in Salt Lake City, Utah.