By Dr. Ken Broda-Bahm:
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Ever felt like you needed a phrase to describe that moment when you are sucked into a client's unproductive mindset? Well, here it is: "vicarious entrapment." The condition stems from the fact that trial lawyers wear two hats. On the one hand, they're advocates -- zealous advocates - for their clients, focused on seeing and framing the case in the best possible light by maximizing the strengths and minimizing the weaknesses. On the other hand, they're counselors -- trusted counselors -- to their clients, providing a clear-eyed case assessment and advising on how and whether a case should proceed in a way that, if not neutral, is at least a few steps removed from a client's own passionate involvement. Experienced litigators are adept at switching between these two hats as the situation demands, but there still can be a tension between the two roles. There can also be a trap.
The research on risk taking behavior identifies part of that trap in a concept called "escalation." That refers to "a decision maker's tendency to honor resources already invested (what economists call sunk costs) by allocating further resources to a failing course of action" (Gunia, Sivanathan & Galinsky, 2009). You can see how that applies quite well to a pretrial situation. The substantial investments made in both time and energy in the often long walk up to trial can weigh on the decision to settle. Litigants can start to behave like the gambler who doubles down just as a way to try to make up for past losses. In most cases, that won't prevent a reasonable settlement, but in many cases, it can delay it and make the result more frustrating and more expensive. A common solution to this problem of escalating future commitments to honor past ones is to introduce a second decision maker, one who can keep a bit of psychological distance and break the cycle. That sounds a lot like the lawyer's counselor role. The problem is that it doesn't always work. In fact, as shown in several studies, a close bond or an identification of interests between parties makes it more likely that the counselor will be 'vicariously entrapped,' falling prey to the first party's psychological bias toward escalation. This post takes a look at that research, as well as some ways lawyers can keep the hats separate.