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.