by: Dr. Ken Broda Bahm
If it isn’t already a saying, then I’ll try to make it one: When a case gets as far as trial, it is because one side or the other is seriously misunderstanding their chances for success. When both parties are realistic about their chances, then there is really no reason not to settle.
If it is really that simple, then why are juries still being summoned across the country for trials? A recent psychological study explains why: it is probably both sides that misunderstand their chances for success. Bottom line: attorneys are notoriously bad at predicting their own case outcomes.
This research, looking at predictions made by 481 attorneys across the United States, compared attorneys’ pretrial case assessments with the actual case outcomes and found that trial lawyers are overconfident of their chances for victory. That result did not improve with years of experience. While the study doesn’t answer the question, “why?”, the result does stand to reason. Because our adversary system puts advocates in the long-term role of putting the best face on one’s own case and the worst face on our opponent’s, that is bound to infiltrate into the attorney’s thinking: Our own ideas seem to shine, because we’ve spent too much time shining them. That sense of impending victory can create a subtle reluctance to settle the case in a way that meets our opponent halfway.
There are obvious costs to that style of thinking, not only in slower and more costly decisions, but also in surprise verdicts. So what do we do about it? How does the hardworking litigator set aside his litigator hat and take a hard-eyed look at the case? One answer is mock trial or focus group research, but not for the reason that you might think. If attorneys are bad predictors of case outcomes, then a mock trial won’t answer the outcome question any better. The mock trial would need to last days or weeks and involve hundreds of mock jurors in order to provide a statistically significant prediction of your population’s likely verdict. Even then, that wouldn’t predict your actual verdict because the real jury will be just a small sample of that population selected in a very nonrandom manner. So anyone who says that their mock trial will predict your outcome at trial, well, they may also have a bridge to sell you. That said, mock trial or focus group research can still help immensely in breaking the trial team out of the group think that builds unrealistic overconfidence. The simple act of hearing your case flaws discussed by average Americans who are similar to your actual jurors can itself be a bracing tonic of realism for the trial lawyer. The mock trial can be used as an opportunity for the lead counsel to take the opposing role. There is nothing like arguing from your opponent’s shoes to break you out of an insular and self-serving mindset for the case.
Ultimately, there are no magic glasses that will permit you to see your case’s future at the hands of your ultimate jury. But there are tested and effective ways to smash the rose colored glasses that cause attorneys to overestimate their chances of success. And in a system where the best way to win is to avoid the expense and uncertainty of trial, the race doesn’t always go to the swiftest, but to the most realistic.