By Dr. Ken Broda Bahm:
Ever felt like you needed a phrase to describe that moment when you are sucked into a client’s unproductive mindset? Well, here it is: “vicarious entrapment.” The condition stems from the fact that trial lawyers wear two hats. On the one hand, they’re advocates — zealous advocates – for their clients, focused on seeing and framing the case in the best possible light by maximizing the strengths and minimizing the weaknesses. On the other hand, they’re counselors — trusted counselors — to their clients, providing a clear-eyed case assessment and advising on how and whether a case should proceed in a way that, if not neutral, is at least a few steps removed from a client’s own passionate involvement. Experienced litigators are adept at switching between these two hats as the situation demands, but there still can be a tension between the two roles. There can also be a trap.
The research on risk taking behavior identifies part of that trap in a concept called “escalation.” That refers to “a decision maker’s tendency to honor resources already invested (what economists call sunk costs) by allocating further resources to a failing course of action” (Gunia, Sivanathan & Galinsky, 2009). You can see how that applies quite well to a pretrial situation. The substantial investments made in both time and energy in the often long walk up to trial can weigh on the decision to settle. Litigants can start to behave like the gambler who doubles down just as a way to try to make up for past losses. In most cases, that won’t prevent a reasonable settlement, but in many cases, it can delay it and make the result more frustrating and more expensive. A common solution to this problem of escalating future commitments to honor past ones is to introduce a second decision maker, one who can keep a bit of psychological distance and break the cycle. That sounds a lot like the lawyer’s counselor role. The problem is that it doesn’t always work. In fact, as shown in several studies, a close bond or an identification of interests between parties makes it more likely that the counselor will be ‘vicariously entrapped,’ falling prey to the first party’s psychological bias toward escalation. This post takes a look at that research, as well as some ways lawyers can keep the hats separate.
The Studies: Escalation and Entrapment
In a paper presented at the conference of the International Association of Conflict Management, psychology and organizational behavior professors from Northwestern and London Business School (Gunia, Sivanathan & Galinsky, 2009) conducted three studies to look at a decision maker’s problem of escalation (basing future commitments on past sunk costs) as well as the risk that a psychologically connected second decision maker will become entrapped in the same bias.
In the first study, the authors used a story involving an investment scenario, asking participants to take over for an original investor after some losses. The researchers had the goal of determining whether participants would escalate by essentially throwing good money after bad. In one condition, participants were asked to objectively evaluate the investment. In the other condition, however, they were asked to take the perspective of the original investor, imagining how he might have felt as he made the original decisions. Even that small act of identifying with a fictitious character caused the participants to continue the pattern of escalating, much as the original decision maker would have.
In the second experiment, the researchers applied the same approach to the evaluation of a failing employee. Again, those who were encouraged to take the perspective of the original decision maker were more likely to increase their investment in the employee. In a final experiment, the researchers used only university economics majors who would presumably be aware of this problem of sunk costs and escalating. Would they be more resistant to vicarious entrapment? No, they wouldn’t. As in the previous studies, those who were encouraged to develop a psychological closeness to the original decision maker were more likely to repeat that decision maker’s patterns.
The Risk in the Lawyer’s Role:
For trial lawyers, the problem of vicarious entrapment takes the form of overidentifying with one’s client. Of course, lawyers need to identify with clients, and that means knowing where they’re coming from and why. Overidentification, however, occurs when a lawyer’s psychological connection undermines the critical distance that is necessary to prevent a wholesale adaptation of a client’s biases. This could be the criminal defense attorney who starts to trust an alibi that a jury is likely to see through. Or it could be the personal injury plaintiff’s attorney who starts to see genuine pain where the jury will see malingering. The lawyer must remain a zealous advocate, and that includes a duty to put even the worst facts in the best possible light. But the attorney also needs to fight to retain the objective distance that permits the advice, “no, that isn’t going to fly.”
Ways to Gain Distance
1. Rely on Other Pairs of Eyes
Adding a second pair of eyes to your case assessment can provide some essential perspective. That added neutral view can come in the form of an attorney friend, a spouse, a paralegal, or even the person who is scanning your documents — all points of view are useful. And, critically, when you do get feedback, don’t discount it on the theory that you know more about the case. Your additional knowledge is an asset, but it can also be a liability when it comes to clear assessment.
2. Rely on Neutral Research
Pretrial research in the form of a focus group or a mock trial can also provide an essential reality check. Fact finders with little psychological investment, lacking an awareness of the project sponsor, are ideally positioned to provide feedback that is free from the vicarious entrapment of a psychological connection. Even when you are facing a judge or an arbitrator, that isn’t a good excuse for forgoing a mock trial. Bringing in mock judges and mock arbitrators provides an equally valuable sounding board.
Balancing the interests of the lawyer’s advocate role and counselor role is not a case where the solution is a happy medium. Trying to aim for that creates the risk of being good at neither. Instead, the better course is to consciously embrace the two hats, know which you are wearing at any given time, and use tools to help you maintain a separation between the two.
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Other Posts on Case Assessment:
- Criticize Clients Carefully
- Beware of TMI: More Information Doesn’t Lead to Better Decisions
- Know Whether You Need a Guru or a Scientist
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Gunia, B. C., Sivanathan, N., & Galinsky, A. D. (2009). Vicarious entrapment: Your sunk costs, my escalation of commitment. Journal of Experimental Social Psychology, 45(6), 1238-1244
Photo Credit: Minnesota Historical Society, Flickr Creative Commons