Let me give you some examples from real cases. What follows are very brief synopses of cases followed by quotes from jurors in focus groups. Although you may find these quotes surprising, does it mean you would have inaccurately predicted the outcome of trial (or value of the case)? Not necessarily, but the more points your decision-makers find important that you do not address or foresee, the less likely you are to have a reliable measure of the outcome.
Case Background 1: Medical malpractice case against a hospital. Plaintiff lost large amounts of blood during a 5-6 hour surgery. Surgeon and nurses did not find or fix the leak for a while. Plaintiff died a month later still at the hospital from kidney failure related to the blood loss. Plaintiff had pre-existing conditions and was overweight.
Juror: “I think she had a death wish because she was in bad health anyway and she brought in a living will when she entered the hospital. If you have a living will and you bring it to the hospital, you’re giving up on life.” [Note that this issue showed up in both focus groups with one or two jurors in each group believing the plaintiff wanted to die and therefore awarding no damages]
Case Background 2: Brain injury from car accident case. Plaintiff still holds a job as a professor at a community college. All doctors and all neurological testing shows brain injury. Pre-existing anxiety which was controlled by taking Xanax.
Juror: “I think he had a drug problem. Taking Xanax that long over time could cause a brain injury or his symptoms.”
Juror: “I think he had a drinking problem. My father was an alcoholic and he died from the alcohol use. He often forgot things too, so I think the plaintiff’s issues are from drinking.” [No evidence was presented of any drinking.]
Case Background 3: Car accident case with back and neck injuries. Plaintiff is on morphine multiple times a day to control the pain.
Juror: “I think she wants money to be hopped up on morphine her whole life…she’s on morphine for dramatic effect and will probably quit when the lawsuit is over.”
Would you have foreseen these issues? Without knowing that a living will was important to Case Background 1, you may have thought you had a strong case which could easily have yielded a zero verdict at trial. Remember this Case 3 next time you assume that jurors will believe your client is severely injured because of the amounts of pain medication they are on.
Would you have accepted the right settlement offer on these cases?
To become better counselors and better serve their clients, attorneys need to become more accurate predictors. One way of doing so is learning whether previous predictions were correct. Mock trials can test these predictions as can post-trial juror interviews.
People as a whole often overestimate their abilities on tasks. This is not specific to attorneys. Many attorneys are overly confident in their ability to predict outcomes. This is due to many factors. Attorneys are supposed to be advocates for their clients. In doing so, attorneys display a confidence about their position. This confidence can, over time, skew the attorney’s reasoning and make him/her overly confident about the likelihood of success. It is human nature to become more confident in a goal when expressing confidence to others. The more one espouses one’s beliefs, the stronger those beliefs become. Further, attorneys wish for a good outcome. In wishing for something, they convince themselves that it is true. This is a strength for zealous advocacy but a weakness when it skews the attorney’s ability to predict and therefore make sound decisions. Attorneys may also exhibit overconfidence due to a failure to recognize that they are not fully in control of the outcome. Judges, mediators, and jurors make up their own minds. To the extent that attorneys do not incorporate those individuals’ control over the outcome into their analysis of a case’s strengths and weaknesses, they disillusion themselves in making decisions or forming strategies.
A study done by Goodman-Delhunty, Granhag, et. al. (2010), tested attorneys’ abilities to predict case outcomes. (Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes. Psychology, Public Policy, and Law, 16(2), 133-157). Participants consisted of 481 litigating attorneys, the great majority of whom were civil litigation attorneys. The attorneys were asked what they would consider a “win” in terms of a minimum goal for the outcome of the case. They were also asked what their degree of certainty was for achieving that minimum goal or better. In 32% of the cases, the final outcome matched the minimum goal set by attorneys. In 24% of the cases, the outcomes exceeded the attorneys’ minimum goals. In by far the majority, 44% of the outcomes were less satisfactory than the minimum goals. In a large proportion of the cases where the minimum outcomes were not met, the attorneys erred on the side of being over confident. Further, the higher the confidence level, the farther off the attorney’s prediction was from the outcome. The study also found that experience had no effect on the ability to predict case outcomes: Experienced attorneys were no better at predictions than were inexperienced attorneys.
If you accept that you may not be the most reliable predictor of case outcomes, how can you better serve yourself and your clients? Get input from people who are not handling the case—someone who can see the case with fresh eyes and without any stake in the outcome. When at all possible, run focus groups and mock trials. The only way to find out what jurors are likely to think is to ask people who match your juror demographics. If done before mediation, focus groups and mock trials can direct you as to whether to settle and what range of settlement figures are acceptable for that case based on what jurors would do at trial. Without the input from outside sources, you may feel confident in the decisions you make concerning your case, but chances are that you may not be accurate.
Keywords: jury, mock jury, case outcome, case prediction, focus group.