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Predicting case outcomes? Lawyers are pretty dismal at it!

Monday, May 31, 2010
posted by Douglas Keene

A recent paper published in Psychology, Public Policy and Law investigates just how accurately U.S. lawyers predict case outcome. The news isn’t good. Attorneys are over-confident in their predictions across the board.

This does make sense since you need to believe in your case in order to advocate effectively. Yet, having a better sense of potential outcome would be of obvious benefit in case selection. The outcomes from this study are varied:

  • Lawyers were extremely over-confident. This was true for defense attorneys as well as prosecutors and attorneys on both sides in civil cases.
    • Oddly, years of experience did not improve the likelihood of accurate prediction—although there is some historical evidence that having a niche specialty area does improve predictive accuracy to some degree.
  • Lawyers representing defendants in criminal cases involving victimless crimes or crimes against property were more accurate in their predictions of case outcome.
    • The authors hypothesize that in these cases (with less ambiguous fact patterns) the attorneys are relying more on objective rather than subjective factors in making predictions.
  • Gender makes a difference. Male attorneys were more over-confident than female attorneys. Thus female attorneys had better outcome predictions.

The authors suggest implications for lawyer-client relations, case management strategies, court efficiency, and lawyer training and education. However, none of the experimental manipulations were successful in improving the accuracy of case outcome predictions.

There are several take-aways from this research—although we look at different things than the authors do!

  • As you consider whether to take on a case, look at the objective facts. Do not be blinded by the sex appeal of a case, how much publicity it will bring you, or how good you will look in that brown shirt and tie (the one that brings out your eyes) on television. What are the facts—good and bad? The more you want to take on a case, the more you need to stop and consider the objective data.
  • If you are male, have a female colleague. Consult. Consider her cautionary input. Go over the objective data with her. Remind yourself (when you want to argue) that she is likely to be more accurate than you in prediction and try to see her point of view.
  • Consider the idea of pre-trial research.  Well-conducted concept or ‘discovery’ focus groups offer a more objective opportunity to see how the facts affect decision-making, instead of attorney persuasiveness and argument.  If not pre-trial research then consider the idea of talking to an experienced trial consultant for an hour or two. Get their perspective. It’s different than yours. (Remember the Bay of Pigs…).
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