By Dr. Ken Broda-Bahm:
Trial lawyers arguably wear two hats. The first hat is that of the advocate — zealous, convinced, and laser-focused on their client’s best case. The other hat, though, belongs to the counsellor who assesses the case and advises the client — sober, grounded, and realistic. It takes the advocate’s hat to get through discovery and trial, but it takes the counsellor’s hat to weigh in on whether the case should be settled prior to trial. The two mindsets are obviously in conflict, but lawyers have the training and experience to set aside the adversarial mindset in order to rationally assess the case for settlement, right? The research says, “not really” because there’s a strong “myside bias” even among the legally trained, and it is very hard to control or to set aside.
The latest study demonstrating this (Jeklic, 2023) focused on 166 Masters students in law in the United Kingdom. The participants were given an identical set of facts and law, and randomly assigned to the side of a claimant (cyclist) or defendant (driver) in a personal injury claim. They generated arguments for their own side, considered arguments for the other side, and made an estimate of the award they would expect from a judge. The research revealed a very strong myside bias in favor of whatever side they were assigned, with claimants expecting awards from a judge that were 69 percent higher than defendants’ awards and both sides finding the arguments for their own side 30 percent more convincing. The confidence that accompanies the adversarial role can also serve as a barrier, with unrealistic expectations preventing settlement in cases that should settle. In this post, I will look at myside bias, why it is resistant to change, and what can be done about it.
What is Myside Bias?
Myside bias is one of those biases that is quite easy to understand and to see in practice. There’s a long line of research showing that the simple act of assigning a side, even when that assignment is known to be random, is enough to create that bias. Further cognitive engagement (working on a case and thinking of arguments) magnifies it. As the author notes, “Merely incentivizing people to be advocates biases a range of judgments automatically and without conscious control.” Taking a side means favoring the positions and the arguments of that side. One might argue that in an adversarial system, that bias is a feature, not a bug: When justice depends on the arguments of those taking each side, we want the advocates to believe in their sides and to be zealous in their advocacy. The problem is that, when it comes to neutrally considering your chances, a step in assessing your case for settlement and in preparing realistically for trial, that myside bias primes both sides toward the kind of unrealistic expectations that can delay or prevent a good result.
Why Is It So Hard to Set Aside?
Given the incentives of advocacy — reputation, compensation, legal responsibility — it is natural for trial lawyers to embrace that role, including the myside bias that comes along with it. As the author notes, “lawyers gain utility from processing evidence with a myside bias (because it pays off to be a zealous advocate).” But there is also a cognitive component. As a result of our tendency to prefer easier cognitive routes, something the academics call “miserly processing” the information that favors us is always going to be easier to understand, remember, and use than the information that doesn’t. Even as we are realistic about the existence of this bias — fully three-quarters of participants in the study expected the other side’s estimates to be different from their own — there is still the apparent belief that the error is with the other side, and not with you. Importantly, myside bias is not mitigated by intelligence or cognitive engagement. In fact, there are some reasons to believe those with greater intelligence have greater resources and creativity that they can use to artificially inflate their own sides. Researchers have also attempted several debiasing strategies, such as highlighting the bias, reminding participants that prediction requires a more neutral perspective than advocacy, or asking them to assume their estimate is wrong and to create reasons why (something they call “dialectical bootstrapping”). Some of these measures do significantly reduce myside bias, but they don’t eliminate it. For example, in the study considered in this post, the debiasing strategies brought the myside advantage down from 69 percent higher to 21 percent higher.
So What Can Be Done About It?
We know that confidence, even overconfidence, can have a benefit for the advocate — the convinced are convincing, after all — but that comes at a cost when it comes to settling cases. I’ve said before that cases go to trial when one side or the other, or both, are being unrealistic about their chances. Given that advocates can’t simply “switch hats,” or decide to set aside the bias, and given that the methods of debiasing aren’t able to reliably eliminate that bias, the best approach to dealing with myside bias is to outsource the assessment. Ask for opinions from other colleagues who are not engaged advocates in the case, pay particular attention to the views of neutrals like judges, mediators, and arbitrators. Before trial, it can be very grounding to submit the case to mock decision-makers — a mock judge or mock jurors — to see if their reactions diverge from your optimistic view. In the run-up to trial, and the final settlement negotiations, it also helps to empower a separate negotiating team including separate attorneys who are not otherwise involved in the trial. Those who are not simultaneously preparing their opening statements and examination outlines are likely to have a more clear-eyed view of their strengths and weaknesses.
Ultimately, it is only natural that good advocates are going to embrace their side of the dispute. But it takes awareness as well as active counter-measures in other to set aside that bias long enough to get a good neutral assessment of your chances.
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Other Posts on Case Assessment:
- Predict With Care: Adapt to Overconfidence in Case Assessment
- Beware the Bias for the “Safe” Call in Case Assessment
- Keep Learning While Your Case Is in Limbo: Seven Ways to Use the Pause
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Jeklic, M. A. (2023). Can you trust your lawyer’s call? Legal advisers exhibit myside bias resistant to debiasing interventions. Journal of Empirical Legal Studies. URL: https://onlinelibrary.wiley.com/doi/abs/10.1111/jels.12350