Improving Lawyer Judgment by Reducing the Impact of "Client-Think"

By Kaster, Laura A. | Dispute Resolution Journal, February-April 2012 | Go to article overview

Improving Lawyer Judgment by Reducing the Impact of "Client-Think"


Kaster, Laura A., Dispute Resolution Journal


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Improving Lawyer Judgment by Reducing the Impact of "Client-Think"
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.