By Dr. Ken Broda-Bahm:
The 2014 World Series ended yesterday in a 7th game win by the Giants. The game had some recalling the last time the Royals were in the World Series: 1985, where an infamous blown call by the umpire in game six led to a Royals win in game seven. Those are the calls that umpires desperately want to avoid. And recent research shows the lengths they will go to avoid them. A study discussed earlier this week by NPR social science correspondent Shankar Vedantam demonstrates statistically that Major League Baseball umpires fear blowing big calls and have a bias toward making calls that preserve the status quo in any given game. The study is the work of Stanford Business School Ph.D. students Etan Green and David Daniels (2014) who take a surprisingly detailed look at more than a million calls made by 75 Major League umpires and notice several biases, one of the most interesting focusing on a conservative tendency toward safer calls. Etan Green explains, “If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo.” And interestingly, the higher the profile of the game, the greater the associated bias.
Of course, that’s baseball and not litigation. But attorneys are often in a similar position of calling the balls and strikes that relate to the strengths and weaknesses of the case. Given that case assessments can carry stakes that are as high as a seventh game in the World Series, these calls can fall victim to the same conservative species of bias. If a case trajectory is heading in a particular direction, toward trial or toward settlement, could there be a tendency to make case assessments that align with that trajectory? The study discussed by Vedantam doesn’t say that, of course, but anecdotally, I believe the answer is at least sometimes “Yes.” This post shares some thoughts on practices that can lead your case assessments away from the safe calls and toward the more accurate calls.
Don’t Set Up Your Case Assessment to Confirm the Status Quo
Chances are you think you’re right. Your facts are good, your arguments are strong, and justice is on your side. That belief in the virtue of your own position that often — not always, but often — accompanies trial work is part of what encouraged the client’s choice to litigate, and is part of what makes you a good advocate. So don’t set aside confidence. But do try to avoid a couple of traps that can lead you to a “safer” case assessment that essentially confirms the status quo of what you already believe.
Avoid “The Advocate’s Assessment”
It’s only natural to turn to the person closest to the facts and the day-to-day preparation when you want an understanding of the up-sides and the down-sides of your case. But that clear-eyed assessor ends up being the same person you expect to be the passionate advocate: the lead counsel. Many can be exceptionally objective on that score, and some end up so focused on the other side’s position that they naturally bend in that direction. But more often, I see advocates who have come to believe in their case so fully that they can no longer be completely objective about it. A kind of ”vicarious entrapment” has occurred, where they have come to identify with the client’s interests and to see the case through the same lens. The perspective of lead counsel is vital, but as a hedge, bring someone else into the assessment picture: a co-counsel, a consultant, or another uninterested attorney.
Avoid “The Loaded Mock Trial”
Because you are in control of the mock trial, it is pretty easy to load the research project with the facts that work best for you: Your best exhibits but not theirs, your demonstratives but not theirs, your preferred theme but no comparable theme from the other side. In addition, another far too common practice is for lead counsel to present its own side in the mock trial while a far less experienced co-counsel or an associate stands in for the other side. Those practices set the research project up to confirm what you already believe: Your side is stronger. A better practice is to make sure that you are giving the other side every benefit of the doubt, providing them with the strongest version of their case you can muster, and breaking all the ties in their favor.
Instead, Design Your Assessment to Reveal the Unexpected
You can substantially improve your own case assessment by running a good mock trial — one that follows a solid set of best practices. Beyond that, there are a couple of other considerations for keeping your case assessment out of the “safe” zone of confirming current expectations.
Aim for a Diverse Team
Groupthink can affect any close working team. Within a trial team, that groupthink can continually reinforce the perception that “we’re right, and they’re wrong” and foster unrealistic expectations of your strengths and weaknesses. A diverse team is less likely to fall into that kind of lock-step, and more likely to bring a diversity of views. So when you are putting your team together, think about broadening your group in a number of different ways: Do they have different backgrounds, or different levels of experience with the case? Are you getting a fresh perspective from time to time from someone who has been less involved?
Aim for an Open Dialogue
Particularly on the subject of sharing the strengths and weaknesses of your case, it also has to be okay to share dissenting views. Research also supports the principle that active disagreement leads to better decisions in the long-run. So it has to be an option to fight within your trial team as long as you are able to hear those disagreements out and resolve them. You don’t want to just attend to the consensus, or just hear the opinions of those who are most experienced, you want to hear as many opinions as possible. You should strive to create conditions for a creative trial strategy. “Out of the box” thinking is often praised in principle, but shunned in practice. That causes teams to act like the nervous umpire and to err on the side of making calls that maintain the status quo of current expectations. Consciously preserving an open dialogue and paying particular attention to disagreement can guard against hasty conclusions, unrealistic assessments, and a host of other bad calls.
Other Posts on Case Assessment:
- Expect Broad Spectrum Assessments (Especially for Defendants)
- Avoid ‘Vicarious Entrapment’ When Assessing Your Client’s Case
- Beware of TMI: More Information Doesn’t Lead to Better Decisions
- Know Whether You Need a Guru or a Scientist
Green, E., & Daniels, D. P. (2014, February). What does it take to call a strike? Three biases in umpire decision making. In 8th Annual MIT Sloan Sports Analytics Conference (p. 8).
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