Lawyers must evaluate cases and try to predict the most likely outcome. To be successful, to attract and win clients, they must do so with confidence. A recent study of the accuracy of those predictions, however, reveals that lawyers are often overconfident and overly optimistic in their assessments of a client’s case.
A recent study published in Psychology, Public Policy and Law revealed that the more confidence a lawyer expressed in his or her ability to achieve a possible result, the more likely he or she will fail to achieve those results. You can read the full article here (Insightful or Wishful – Lawyers Ability to Predict Case Outcomes.pdf).
The lesson appears to be that clients might want to maintain some skepticism about the results that the supremely confident lawyer predicts, even as they recognize that the statistics don’t tell the whole story. The lawyer who doesn’t believe in a case, or who lacks confidence will have a difficult time being the zealous advocate that is the touchstone of an effective litigator. We may not meet our lofty goals as often, but that is not to say that we don’t do better for our clients when we are confident in the case. In our next post, we’ll take a look at predicting the outcome in a business dispute case.
How Important Is The Lawyer’s Prediction?
When choosing and working with a lawyer, we all look for someone that we believe can achieve the results that we want. And we are attracted to the lawyer who both exudes and inspires confidence. (I look for the same thing when I have to hire a lawyer. The fact that I have a law degree doesn’t make much difference when I am the client.) We aren’t likely to be attracted to a lawyer who is equivocal and uncertain about a successful outcome.
We will make decisions based on the lawyer’s assessment, important decisions. To sue or not to sue. To settle. To pursue the extra deposition or conduct additional discovery. We want and need to believe in the lawyer’s judgment and expertise. It is difficult to pursue a litigation strategy when the lawyer isn’t confident in its success.
Our need to believe, however, might be contrary to reality. This study indicated that there is a negative correlation between the confidence of the lawyer and his or her ability to predict the outcome.
The Statistical Evidence
In a study taken primarily among civil litigators, the researchers found that the lawyers who were the most confident about the results they expected to achieve were also more likely to fail to achieve those results. At the same time, those lawyers who were less confident were more to likely to exceed their expectations. Women were slightly more accurate than men. And, perhaps most surprisingly, years of experience did not seem to affect the results.
The researchers conducted surveys of lawyers concerning matters that were expected to be tried within 6-12 months. They asked the lawyers to define the “win situation in terms of your minimum goal for the outcome of the case.” The lawyers where then asked to give the probability that they would achieve the outcome. The researchers then went back and determined the actual results of the matters to see how they compared to the lawyers’ predictions.
Most of the lawyers said they were 45-65 percent confident of achieving the outcome that they predicted. These lawyers were generally accurate in their predictions, particularly among those where were 46-55 percent of the outcome. But as the lawyers “confidence interval” exceeded 65 percent, the accuracy of their predictions deteriorated. The most confident lawyers as a group failed to achieve their predictions about 20 percent of the time.
The least confident lawyers as a group did significantly better than their estimates, according to the researchers. In fact those who were less than 50 percent confident underestimated the results as often as they were accurate.
Lawyers Are a Stubborn Lot
The researchers tried to determine whether the lawyers would be influenced by other factors. The predictions and confidence levels of the lawyers did not change significantly as the case got closer to trial. Nor were the lawyers likely to revise their predictions – or be significantly less confident – when asked to think through the negative aspects of their cases.
The opinions of the lawyers after the matter had been resolved also were not subject to major revisions. Sixty-five percent of the more confident lawyers said they were pleased or very pleased with the outcome, although lawyers achieved their goals in only 57 percent of their cases. When asked why the cases had failed to meet their predictions, the most frequently given response related to factual and evidentiary issues, the next most cited reason was “witness problems,” followed by “client problems.” The least cited reason was attorney performance, including the performance of adversary counsel.
The Non-Scientific Assumptions
What is missing from the research is whether the overconfident lawyer does better for his or her clients than the lawyer who lacks confidence. In other words, on a similar set of facts, will the client achieve a better net result with the confident lawyer or the not-so-confident lawyer. In my opinion, the lawyer that is confident becomes a leader among the other lawyers or lawyers in the case, with the judge and with the jury. There is a benefit to the client, however difficult it is to measure.