As a litigator for over 20 years, I can’t stand the thought that I might have been biased in assessing my client’s positions all that time.  As a mediator perpetually studying the art of mediation, however, I have to wonder. 

I recently reviewed an article in the Journal of Empirical Legal Studies entitled Can you trust your lawyer’s call?  Legal advisors exhibit myside bias resistant to debiasing interventions by Mihael Jeklic at Kings College London, Dickson Poon School of Law. 

Reflecting on the fact that lawyers on both sides of an argument typically believe their client’s position was 30% more convincing than the opposition, Jeklic delves into what causes these perspectives when both cannot be right.

Jeklic arrives at the conclusion that lawyers are subject to “myside bias” based in part upon “naïve realism” and “blind spot bias” that are resistant to “debiasing interventions.”  In effect, lawyers are as bad as their clients at evaluating their cases. 

Now, what is all that professor-ly psychological mumbo-jumbo? 

  • Myside bias, or Advocacy bias, is exactly what you would think: people evaluating evidence in a way that is biased toward their prior beliefs, opinions, and attitudes.
  • Naïve realism is the mistaken belief that the world we perceive is the “real” world when our lens is shaped by our personality, experiences, needs, thoughts and fears.
  • Blind spot bias is failing to see our own motivational biases though we can see them in others.

We lawyers shape the view of our clients’ cases in a way that is consistent with our world view.  Our world view is shaped by the fact that we’ve been trained as advocates and are paid to advocate the best position for our clients.  We then judge their chances of success through the lens of the arguments we’ve created. 

Within 30 minutes of taking up the role of an advocate for a particular position, we are already psychologically entrenched in that view and find it more difficult to see the issue objectively.  After a year of discovery, motion practice, and posturing we arrive upon the eve of mediation trying to provide our clients an honest assessment of their chances at trial and we simply cannot do it as effectively as we think we can. 

It’s not our fault.  It’s the way our mind works and the job we’ve been trained to do.  The problem is in recognizing it has occurred and dealing with it.  Debiasing techniques, as the psychologists call them, are unfortunately not very effective. 

Lawyers asked to consider:

  • Arguments supporting the other side
  • Whether role-induced bias might affect them, and
  • Reasoning counter-factually

reduced their initial positional estimates somewhat, but not to the point at which the sum of parties’ respective views of each other’s positions equal just 100%.  Moreover, lawyer initial estimates served as anchors.  Lawyers were unwilling to adjust their estimates too much because they were unwilling to stray from what they already estimated for their clients. 

In the words of one of my esteemed mentors, John DeGroote:  “If you and the other side value the case differently, at least one of you is wrong.” 

So, what is to be done?  If we can’t fix it and making us aware of it only tempers how badly we do it, what should we do?  First, knowledge is power.  You didn’t know before.  As the article suggests, awareness helps ameliorate the issue some.  Beyond that, be kind to me when I bring it up during your mediation.