By Kaster, Laura A.
Dispute Resolution Journal , Vol. 67, No. 1
The very nature of the lawyer-client relationship serves to increase the unconscious biases that impede the client/lawyer team's ability to see all the information before them and to evaluate its impact. "Client-think" is a real phenomenon and is reflected in the statistics that establish a very high rate of lawyer error in valuing cases for mediation and settlement. But the means to improve judgment is available; but first lawyers and clients have to accept the need to do so and establish methods and habits that reduce the impact of client-think.
LAWYERING requires making judgments about the possible choices clients face. Indeed, Rule 2.1 of the American Bar Association (ABA) Model Rules of Professional Conduct (which have been adopted in 51 jurisdictions) mandates the exercise of judgment:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but also to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.
However, law schools, law firms, and the profession in general have paid scant attention to the elements of judgment and how to systematically improve legal decision making. Lawyers may be fascinated by the new insights of neuroscience, but we have largely ignored more than 30 years of work by Nobel-winning psychologists who, even before pictures of the living brain could be seen in Functional Magnetic Resonance Imaging (FMRI), debunked the notion of a hypothetical "economic man," who could simply elect to make rational choices. These scientists described a multitude of unconscious biases that impair rational evaluation. Daniel Kahneman1 and Amos Tversky established that instinctive unconscious reactions often trump rational decision making and deceive us into believing we have made a rational decision. Richard Thaler and Cass Sun - stein ap plied many of these insights to public policy decisions. 2 Po pular culture is receptive to these ideas. We lawyers need to examine them, learn from them, and incorporate protective processes into our ap - proach to making decisions in order to improve outcomes. Without a method for guarding against the forces of the unconscious mind, and of group decision making, and then of calibrating the accuracy of our decisions, we have no hope of improving our own judgment.
Does Lawyer Judgment Need Improvement?
Perhaps we ignore the available information on decision making because we believe that close analysis of facts and law exempts us from the effect of unconscious bias. But concrete evidence establishes that we have no such exemption. In fact, it appears from the information now available that the very nature of client representation and loyalty exacerbates and concentrates known cognitive impediments to create what I call "client-think" (a take-off on "groupthink"3). Client-think impairs our ability to see critical facts, and even if we see them, to weigh them appropriately. The resulting selective perception is reinforced by the adversarial relationship with the opposition. Client-think makes us literally blind to visible and knowable risk. The result is mis-assessments of cases and their risk adjusted value.
In a series of works that analyze lawyer judgments about the value of cases that is at the core of negotiation, mediation, and settlement, Randall Kiser and his colleagues have clearly established that despite high settlement rates, lawyers are routinely turning down settlements only to obtain a less satisfactory result at trial. They are not assessing the BATNA correctly.4 It is often when the two sides of the dispute have very different valuations of the likely outcome that mediation reaches an impasse, or settlement discussions fail. In 2008, Kiser along with Martin Asher and Blakely McShane published a study entitled "Let's Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settle ment Negotiations. …