Attorneys Beware: Confidence May Lead to Bad Advocacy

Posted By Amanda Baratz, Nov 18, 2013

Like most law students, I’ve dreamed of the day I will be successful enough to cherry pick my clients. Working with disputes that fall perfectly in my wheelhouse and reflect my personal convictions seems like the ideal practice. Unquestionably, this kind of synergy between an attorney and her work would foster a heightened level of self-confidence. Unfortunately, it is precisely this increased confidence that can easily lead to worse performance. 

The Experiment: Using Moot Court to Understand Overconfidence

In 2012, two law professors engaged in an experiment to determine the source and effect of overconfidence with regards to attorney advocacy. The forum of the experiment was a moot court competition held at three ABA-accredited law schools. By analyzing the students’ performances, these two men were able to examine optimism bias in a controlled environment. (Optimism bias simply means being more optimistic or confident about a case than is warranted).

Moot court is an ideal environment to study optimism bias, primarily because it eliminates any possibility of selection bias: The participating students are randomly assigned to a side for which they must advocate. This allows the experimenter to eliminate the possibility that any exhibited overconfidence stems from the students’ self-selecting the side that is more personally appealing. Also, moot court competitions are designed to mimic realistic, evenly weighted disputes. One side does not bear significantly more merit than the other. Thus, in the moot court environment, the professors were able to explore deeper sources of the optimism bias outside of self-selection and a genuinely strong case.  

The Results: Is the Optimism Bias Inherent?

From this study, the researchers determined that optimism bias came about even when participants were randomly assigned to a side for which to advocate. Further, spending more time on a case was not associated with greater optimism bias. They concluded that overconfidence was therefore not exclusively caused by-- self-selection or over-preparation. Overconfidence appeared to be an unavoidable by-product of advocacy.

It is not a jump to assume that these results would apply to advocacy at the negotiation table as they do  in a courtroom. The factors that made moot court an ideal environment to study optimism bias are also present in competitive negotiations. Unfortunately, this experiment has yet to be performed in a negotiation environment. However, exploring these findings within the context of negotiation may provide a heightened level of insight with regards to negotiations, settlement, and choosing a client.

Application to Negotiation

            On the one hand, overconfident attorneys in a negotiation may turn tradable issues into distributive issues, resulting in no hope for a solution. Tradable issues are those that allow the attorneys to work cooperatively in reaching a solution. These types of issues can only be identified when the attorneys admit which issues bear a high and low value to their client. Distributive issues are those that are most contentious because they tend to result in a “zero-sum” game. Overconfidence may result in an attorney ignoring her counterpart across the table. Why would your opponent’s priorities matter? Increased confidence in your client’s merits means your proposals need not be adjusted to accommodate the needs of your opponent’s client.

            On the other hand, heightened confidence may help in finding compatible issues. Compatible issues are when both parties want the same thing. Attorneys will better recognize when a solution, or even justification, falls perfectly in line with their own opinion of the issue. Compatible issues will come to light quickly, and no overly confident party would hesitate to solidify an agreement for that term.

 Avoiding the Negative Impact of Optimism Bias

            In the moot court competition study, participants with the highest opinion of their case did significantly worse than those who recognized the case to be a “close call.” In other words, those who had the highest level of confidence turned out to be the worst advocates. As shown above, overconfidence can result in both positive and negative negotiation techniques. In order to best advocate, optimism bias must thus be actively minimized but not eliminated.

            One way to minimize optimism bias is to explicitly and honestly list the weaknesses of your own case in writing. This practice forces the attorney to not only think about, but also physically see, the areas of their case that do not merit confidence. It is also a good technique in order to prepare for the possible attacks that another attorney may make to justifications that would otherwise seem ironclad.

            Another way to minimize optimism bias is to employ a third, neutral party such as a mediator. This neutral person will not have the inherit bias that comes with being an advocate. She will be able to recognize the strengths and weaknesses of a case more reasonably and fairly.

Conclusion

An attorney’s main job is to advocate for their client to the best of her ability. It follows that a law school’s main objective is to teach its students how to advocate properly. Proper advocacy, however, can be greatly hindered by unbridled overconfidence. Negotiations is an optional course at almost all law schools, and even those classes do not always cover optimism bias. Perhaps law schools need to adjust their curricula to better teach the existence of this bias and the methods of reducing its effect.

For more information on optimism bias and its effect on advocacy, please see Zev J. Eigen & Yair Listokin, Do Lawyers Really Believe Their Own Hype, and Should They? A Natural Experiment, 41 J. Legal Stud. 239 (2012).