Several years ago, I read about a study which showed that lawyers tended to be overconfident in winning at trial.  The study (Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes by Jane Goodman-Delahunty, Maria Hartwig, Pär Anders Granhag and Elizabeth F. Loftus, published in 16 Psychology, Public Policy, and Law, 133-157,  No. 2, (2010) ) interviewed 481 attorneys – men and women-  located in 44 states who had a civil or criminal trial set within the next 6 to 12 months. They were each asked “What would be a win situation in terms of your minimum goals for the outcome of this case?”. “Each lawyer responded with a specific percentage between 0%-100% in terms of the probability of achieving the stated goal.   (“Legal Case Management: Prediction of Case Outcomes, Overconfidence, and Lawyers’ Need for Calibration Tools-Part 1”, Psycholawlogy (May 8, 2013) at 2.))

What the researchers found were that “…far more lawyers were susceptible to overconfidence bias than to under confidence bias. In general, the higher the expressed level of confidence, the greater the overconfidence. (Id. at 2.) This result did not depend on the level or years of experience of the attorney: years of practice did not matter, here. (Id. at 2.)  Further, only those female attorneys who expressed a confidence level of more than 75% seemed to be overconfident while those male attorneys who expressed confidence of more than 66% seemed overconfident. (Id.) Further, the amount of time between the study and the trial date did not seem to matter either. (Id. at 3.)

This memory was prompted by a recent article in the New York Times, “You are Not as Good at Kissing as You Think. But You Are  Better at Dancing” by Spencer Greenberg and Seth Stephens-Davidowitz (April 6, 2019) discussing in general terms that we both over-estimate and underestimate our abilities to do different things.  For example, more than 90% of us think we are above average drivers even though statistically, only 50% can be better and 50% can be worse. (Id. at 1.)

One of the authors Spencer Greenberg conducted a study on the topic by asking participants where they ranked on 100 different skills. (Id. at 2.) What they found was that people tended to be overconfident about having interesting conversations, avoiding or falling for a fraud, winning a game of trivia, driving, kissing, using a computer or controlling their emotions when necessary. However, they tended to be underconfident about predicting the outcome of a game in sports, dancing, running long distances, playing soccer, making a billion dollars or reciting the alphabet backwards quickly. (Id.)

Why are people overconfident? The authors  point to four factors.

 First, people tend to be overconfident on skills that reflect one’s underlying personality or character. This helps explain why people overestimated how they compare with others in their ethics, their reliability as a friend and their value as a human being….

Another factor that predicted overconfidence is how much a person’s skill level at a trait is a matter of opinion. Give people more wiggle room in how they can define the skill, and they will tend to rate themselves higher. People were slightly more overconfident in how they ranked their intelligence (somewhat subjective) than their performance on an IQ test (seemingly more objective.)

Next, the researchers found that people tend to be overconfident on tasks that are perceived as easy and underconfident on tasks that are perceived as hard. People overestimate how they compare with others in chopping vegetables (easy) but underestimate where they rank in their ability to recite the alphabet backward (hard)….

The final factor that influenced confidence is experience. The more experienced people are at a task, the more people tend to be overconfident. People tend to be overconfident in their skill at making scrambled eggs, which most people have done multiple times, and underconfident in their ability to paint a portrait, which most people have rarely tried. (Id. at 3.)

The conclusion that these authors draw is that “…people may systematically underestimate their ability to do really hard things that they have never tried before….” (Id. at 4.) “… [W]hen they imagine doing something difficult or something that they haven’t tried before, people tend to be timid and doubtful of their capabilities. When they go outside their comfort zone, people systematically sell themselves short.” (Id.)

And the corollary as indicated in the study of  trial lawyers seems to be true as well: when people imagine doing something that is well within their comfort zone, they will over sell themselves, or be overconfident in their ability to succeed well.

In the over 2000 mediations I have conducted, some have not settled at mediation or even weeks later  as a result of the mediation. They have gone to trial. Sometimes, I have been able to find out the results at trial and too often, the parties would have done better settling the case than what the jury had to say about the matter.  How true is the adage, it is always better to settle?

… Just something to think about.




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