The blind leading the blind?

We are counselors, which is a term that is broader than attorney or lawyer. Counseling implies so much more than merely representing someone in court in a criminal or civil matter. It is our job to counsel, to advise. We are not cheerleaders and we are not enablers. I often tell clients that they may not like what they hear from me, but that I will not lie to them or blow smoke up their ass, because it is my responsibility to give them all the information so that they make the best decision for them.

Flowing from that duty – and particularly important in criminal cases – is the ability to accurately assess the strengths and weaknesses of the State’s case against the client and analyzing the risks and benefits of going to trial. Everything we do leads up to that. Some others have written (Bennett I can remember for sure, but I can’t find the post) that their focus from the first court date is preparing for trial. It is through that preparation for an eventual trial that we as counselors can fully understand the intricacies of the matter. Investigate fully and discover that there exist no defenses? Your advice to the client reflects that. Realize that their witnesses are shaky and the evidence questionable but the offer is good enough to hedge against any “wild card” eventuality? The advice varies accordingly.

But a new paper [pdf] suggests that perhaps we’re all a little full of ourselves and overestimate the strength of our case.

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions  and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by  a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their  chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions.  Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female  lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce  overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve  calibration.

There’s no need for me to get into the paper in detail. You can read it for yourself; it isn’t very long. Striking is the fact that there wasn’t much of a difference between civil lawyers and criminal lawyers. Also notable is that attorneys were overconfident regardless of their experience. This sample tended to overestimate their chances of success at the same rate.

There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.

The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.

It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.

When relaying an offer, or advising a client to reject one, I ask myself: “would I do what I am recommending the client do?” Because if I can’t follow my own advice, I have no business suggesting it to someone else.

Of course, the client is free to do as he pleases. It’s his liberty on the line, after all.