Why Even Good Lawyers Can Give Biased Advice

Abby is in a hurry. She is late for work. As she rushes out the door, she forgets her helmet. She mounts her bike and cycles down the road. As she is passing a parked car, the door suddenly opens and Abby crashes into it. Falling, she hurts her head. The car driver offers to pay $50,000/£40,000 to settle out of court. Abby’s lawyer says this amount is far too low, he can get her at least $70,000/£55,000 in court. The car driver says $50,000/£40,000 is his final offer. What should Abby do, settle or go to court? Going to court will take time, Abby will have to pay legal fees, and it is not at all certain what kind of money she would get in the end. She could get what she expects, but she could also get less. Settlement, on the other hand, costs little, is quick, and certain.

When people fail to settle their disputes, they go to court. Usually, they hire lawyers to help them, and the lawyer has two jobs. First, they represent the client in court (advocacy function). Second, they advise the client on their rights and how the judge or jury is likely to decide their case (advisory function). Because people are not familiar with the law, they often decide whether or not to settle based on their lawyer’s advice. This makes the advisory function incredibly important.

So, what should Abby do? The answer very much depends on whether her lawyer’s estimate of the money they could get in court is right. The problem here is that research clearly shows that people are too optimistic when thinking about what will happen in situations that matter to them. This is known as “myside bias.” “Myside” highlights that people are too confident that things are good for their side. This differs from just being wrong, which would sometimes lead people to think things are worse for them than reality. Over the past 50 years, research has shown this kind of bias in people’s beliefs and decisions in virtually all things that they feel strongly about. Examples include, medical decisions, politics, religion, and even science and research.

Research also shows that lawyers are just as biased. If they represent a particular client, they will be psychologically unable to be objective and will err in favor of their client. For example, a lawyer representing Abby will think that she should be awarded more in court than she really will. This is a big deal because if your lawyer is overconfident, they could advise you to go to court when it would be better to settle. But if the lawyer knows they may be biased, can they correct for it?

This study: can lawyers overcome their bias by themselves?

In our study we looked at whether lawyers have bias, and whether they can get rid of this bias by following certain procedures. We put law students in two groups. We told one group that they represented the defendant, the person accused of wrongdoing, and the other that they represented the plaintiff, the one doing the accusing. We then gave both groups an identical description of a traffic accident. We asked the students to think about the following case and prepare for the settlement negotiation: 

A cyclist was going fast and was not wearing a helmet. A car driver opened the door, without looking, and the cyclist crashed into the door and hurt her head when falling . We told the participants that the appropriate amount of damages was $130,000/£100,000 if the accident were entirely the defendant’s fault. In reality, the cyclist is partly at fault for not wearing the helmet. 

We then asked them what they thought a judge would give to the plaintiff. As we expected, there were major differences between the two sides. The defense thought their client would have to pay $55,000/£43,000. The plaintiff’s representatives thought the judge would award their client a $92,000/£72,000, almost 70% more. If this were a real case, there would be no chance for settlement at all, despite the parties having the same information! This means the cyclist would likely go to court even though perhaps she should have settled. We then asked the participants to rate how convincing they thought the judge would find different arguments. Some supported the plaintiff by saying, “There is no legal obligation for cyclists to wear a helmet, so damages cannot depend on wearing one.” Some supported the defendant by saying, “Wearing a helmet significantly reduces serious head injuries in cycling accidents.” Here, too, the participants were biased to arguments that supported their side. We then asked them if they had changed their minds about the damages after seeing the arguments supporting the other side. We asked this because research shows that people can change their minds if they consider a situation from the perspective of the other side. Our participants did not change their minds. They still thought the outlook was good for them, no matter which side they represented.

We then asked them to imagine what the other side would expect the judge to award the plaintiff. The idea here was to try even more to put them in the shoes of their opponent. To our surprise, the participants thought the other side would be unreasonably optimistic, but that still did not change their own estimates. Their expectations of what a judge would do remained as biased as before! It was like the plaintiff thought, “Look at that silly defendant who thinks they would only have to pay $55,000/£43,000, how biased they are when we all know the judge would give us $92,000/£72,000!” This is known as bias blind spot – people are good at spotting bias in others but are unaware of their own.

We finally asked them to imagine their prediction of what the judge would award was wrong and to come up with three reasons why that could be the case. This is known as dialectical bootstrapping, a procedure designed to make people consider things against their position that they would normally ignore. We then asked them for their final estimates of what a judge would decide. While the bias was reduced, the final results were still significantly different. The plaintiffs thought they would get $79,000/£62,000, and the defendants thought they would have to pay only $70,000/£55,000. 

 So, the defense originally thought they would have to pay $55,000/£43,000 and now they think they will have to pay $70,000/£55,000. And the plaintiff thought they would get $92,000/£72,000 but now they think they will get $79,000/£62,000. Both parties did become less optimistic, but their expectations are still very far apart. 

What did we learn?

The legal representatives in our study were strongly biased in favor of their own clients even though they all had identical information and legal rules. This contradicts the idea that legal rules are predictable, which is a common assumption of the legal system. More importantly, the study shows that even good lawyers, who are aware of and take steps to reduce bias, may not be able to. This suggests that people should be aware of this risk, not blindly trust their lawyers, and seek neutral advice if they can. These practices could help to avoid falling prey to unnecessary costs, stress, and uncertainty that comes with visits to court.

Written By: Mihael Jeklic

Academic Editor: Chemist

Non-Academic Editor: Retiree

Original Paper

• Title: Can you trust your lawyer's call? Legal advisers exhibit myside bias resistant to debiasing interventions

• Journal: Journal of Empirical Legal Studies 

• Date Published: 10 April 2023

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