THE GOOD LAWYER
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             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....