By Dr. Ken Broda-Bahm:
Consider these words through the lens of your case assessment leading up to trial: "People tend to be optimistic creatures, looking forward to a long life, imagining it full of pleasures and success, and savoring the achievements that are yet to come. Numerous writers have noted this to be a useful affair in that it helps people deal with personal setbacks and provides people with resolve to continue pursuing their dreams. When facing the moment of truth, however, people often abandon their rosy outlook. The realization that time has run out, that one's perception was skewed, that others may witness one's incompetence or blindness, or that disappointment may be right around the corner, all conspire to prompt awareness that the future may not be as bright as initially hoped." That's the rather literary coda to an otherwise scientific research article (Sweeny & Krizan, 2013) that I recently came across. Dubbed the "sobering-up" effect, the psychological bias at the heart of the study refers to the tendency for people to revise their assessments in the direction of greater pessimism as the day of decision approaches. Reviewed in Psyblog, the article documents that the tendency is robust and common across a variety of settings: Projects that begin with positivity and optimism are increasingly taken over by cynicism or even despair.
We have all known some trial teams that drifted in that direction, and the sobering-up effect might account in part for the common scenario of cases settling on the courthouse steps. The odds are the same as they've always been, but as trial looms, our focus can turn more toward the negative. Now the label of a "sobering-up effect" might not be the best name: especially in a litigation context, "sobering up" sounds like a good thing. But it's important to remember that based on this cognitive bias, assessments are not becoming more accurate, they're just becoming more pessimistic. That is a psychological tendency that may cause litigators and their clients to artificially discount their chances for success at precisely the moment when they most need a clear-eyed and realistic case assessment, including both the pitfalls and the promise. In this post, I'll take a look at the bias, its causes, and its implications in litigation.