THE
GOOD
LAWYER
The illusion that
one can predict and control the future is
fed, Kahneman says, by another illusion,
“the illusion that one has understood the
past.” When outcomes surprise us, we search
for explanations, often fastening on the
first one to come to mind. When your
football team loses a game you expected them
to win, you might conclude that you failed
to account for the fact that they would
experience “a let-down” from their big win
the week before. (A let-down may have been a
contributing factor, but so might your
quarterback’s injured wrist or the stiff
wind that blew your kicker’s field goal
attempt to the left.) When the jury comes
back with an unfavorable verdict in the
case, you might decide the reason was an
inappropriate instruction given by the
judge, or a weak performance by your expert
witness, while more important factors
included your failure to connect with the
jury and the strength of your opponent’s
evidence. The real world is messy and
complicated, and usually the contributing
factors to an outcome are numerous and
difficult to weigh.
Lawyers tend to think that the best possible
assessment of a case is one that draws
heavily on their own intuitions. As a group,
lawyers are not inclined to believe that
statistics or outsiders can add much to the
accuracy of their predictions. Kahneman
tells of once asking his cousin, who he
calls “a distinguished lawyer,” what the
odds were of “the defendant winning in cases
like this one”? His cousin replied, with the
hint that the question was superficial,
“Every case is unique.” In fact, Kahneman
believes, uniqueness is very much overrated
and lawyers can learn much by considering
statistics that apply to the sort of case
they have. For example, a lawyer who is
considering representing a plaintiff in a
defamation case against a media defendant
might do well to look beyond the specific
facts of her case—what outrageous words the
defendant used to harm her client—and
consider the statistics for defamation suits
brought against the media. If she does so,
her enthusiasm caused by the specific facts
of the case might be tempered by the
realization that well over 80% of all
defamation cases are dismissed by summary
judgments, and even in the small set of
cases that do go to trial, 37% of them end
up being decided in the defendant’s favor.
Then only one-third of plaintiffs’ verdicts
survive intact on appeal. A paltry four
percent overall success rate for plaintiffs
lawyers in this type of case, should give
any lawyer pause—though, of course, some
facts are so compelling that the long odds
can be overcome.
In
general, lawyers (and almost all humans)
tend to predict outcomes that are
unrealistically close to best-case
scenarios....
Seeking Quality in the
Practice of Law
by DOUGLAS O. LINDER and
NANCY LEVIT (Oxford
University Press, 2013)
The Good
Lawyer
About
The Good Lawyer
Preface
Introductory
Note
The
Good
Lawyer is Courageous
The
Good
Lawyer is Empathetic
The
Good
Lawyer Has a Passion for Justice
The
Good
Lawyer Values Others in the Legal Community
The
Good
Lawyer Uses Both Intuition and Deliberative
Thinking
The
Good
Lawyer Serves the True Interests of Clients
The
Good
Lawyer Has Ample Willpower
The
Good
Lawyer is Persuasive
Seeking
Quality
Quotes
Random
Facts
The
Happy
Lawyer
Excerpt from Chapter 6:
The Good Lawyer Thinks Realistically About
the Future