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“But, You Have A “Great” Chance At Winning At Trial!”

by Phyllis Pollack
May 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

In August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial.

Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).

The researchers were Jane Goodman-Delahunty, Charles Sturt University, Manly, New South Wales, Australia; Pär Anders Granhag, University of Gothenburg, Gothenburg, Sweden; Maria Hartwig, John Jay College of Criminal Justice, New York and Elizabeth F. Loftus, University of California at Irvine,California (“Researchers”).

The goal of the study was to assess “the degree of accuracy in lawyers’ forecasts of case outcomes.” (Id. at p.134). To do this, the Researchers interviewed 481 litigation attorneys including new lawyers and very experienced lawyers, in 44 states across the United States, representing both plaintiffs and defendants in civil and criminal matters. The civil practitioners comprised about 70% of the study while the criminal practitioners represented the remaining 30%. (Id. at pp. 138-140.)

The Researchers interviewed each participant approximately 6 to 12 months prior to the date that a case was expected to go to trial and then interviewed them again after the date that the case was expected to go to trial. The goal was to compare the lawyer’s prediction about the likelihood of success at trial with the actual outcome. (Id.)

Although, at the beginning, the study consisted of 337 civil cases and 144 criminal cases, the Researchers found, not surprisingly, that a large number – 59% – of the cases settled prior to trial (e.g., about 284 cases) while only 31% were actually tried (e.g., about 149 cases). The remaining 10% were resolved by means of summary judgment, dismissal or some procedure other than trial. (Id. at pp. 139-140).

As might be expected, prior to trial, more than 50% of the lawyers opined that a favorable outcome would be reached. In reality, the outcome matched the expectation in only 32% of the cases. The outcome exceeded the expectation in 24% of the cases. But, in 44% of the cases, the lawyer was overconfident; the outcome did not meet the lawyer’s prediction. (Id. at pp. 140-141).

The Researchers also looked at the lawyers’ predictions in terms of gender: men outnumbered women four to one in the study (361 male attorneys vs. 90 female attorneys). When asked initially to predict the outcome at trial 6-12 months away, the female attorneys were just as optimistic as their male counterparts. (Id. at p. 141-142).

However, when the Researchers compared the prediction with the outcome, they found that more female attorneys achieved their minimum goal than did their male counterpart (64% vs. 55%) (Id. at p. 143). In general, what the Researchers concluded was that female attorneys were overconfident about their chances of winning at trial only when their prediction of success was high overall. Female attorneys had a much better ability (than male attorneys) to discern whether they had a moderate versus a high probability of success in winning at trial. (Id. at pp. 143).

The Researchers also determined that years of experience did not make much of a difference. The range of experience of the lawyers in the study was from 0 to 45 years. Both the less experienced lawyers and the more experienced lawyers were prone to be overconfident about their chances of winning at trial. (Id. at pp. 143-144).

Similarly, the Researchers determined that the confidence of the attorneys did not differ depending on whether the case was a civil or criminal matter: the prediction of success at trial was about the same for both groups. (Id. at p. 145). However, where the crimes were victimless, that is, against property, the Researchers found that the lawyers were more realistic in estimating their chances of success than lawyers involved in crimes against persons. (Id. at p. 145).

In sum, when a lawyer predicts the outcome of a trial, there is a 44% chance that he is being too optimistic, . . .unless she is a woman – then chances are that she will be less overconfident and more discerning of her likelihood of success at trial.

So. . . when you are at a negotiation and your lawyer tells you that you have a “great” chance of winning at trial. . . take it with a grain of salt. According to this study, there is a good chance that the lawyer is being overly optimistic and overconfident!

. . . Just something to think about!

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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