Lawyers Don’t Make Very Good Fortune Tellers

Lawyers wear a lot of hats and varying duties and responsibilities with each one.  They serve as advocates, mediators, counselors, friends, and fortune tellers.  Ok well maybe not fortune tellers, but after explaining the circumstances of a case, the client’s first question usually concerns their chances of winning, forcing the attorney to predict the outcome of a case.  And let’s be honest – people want to hear the good and that there is merit to their case.  Not surprisingly, lawyers need to keep making predictions throughout the course of a case.

Interestingly enough, a recent paper published in Psychology, Public Policy, and Law reported that a 500-lawyer study comparing case predictions and realities found that lawyers have a proclivity for over-optimism and overconfident predictions.  Another finding of the study was that female lawyers were much more realistic in their ideas concerning the outcome of a case (shocker!).  And the old adage, with age comes wisdom, does not apply to these findings as there was no difference between younger lawyers and more seasoned attorneys when it came to case predictions.

I would think that older attorneys have seen how similar cases play out and have a better handle on the chances of a case, but then again, there is always an ego involved and giving off the impression that you are going to be victorious is reassuring to a client.

Optimism is good, but I do think that a lawyer owes their clients a level of candor and honesty about the merits of their case, and the findings of this research got me thinking about the line between positive thinking and potential attorney malpractice.  Lawyers are in charge of the case and make the strategic decisions that can make or break a case.  Of course, a client has to be informed, but often the legal complexities of a case can be too much for the layperson and the ultimate decision is left in the hands of the attorney.

Your attorney is tasked with rendering competent representation for you, and when he or she falls short of that required competency, then your attorney becomes liable for those damages you suffer as a result.  The best argument in these overconfidence cases would be for negligence on the part of the attorney based on the fact that they may have known that they were keeping you in a losing case when you should have settled long ago.  Since an attorney can (and has) been held responsible for their negligence in initiating and pursing litigation and/or taking the wrong steps during the course of litigation, there is always the chance that this overconfidence can come to haunt them later.

In the end, I think there needs to be a healthy mix of optimism and realism on the part of the attorney.  As I mentioned, the lay person can easily be overwhelmed by the law, and although they think they should win, the lawyer needs to set realistic expectations because in the end, people are much more let down if they are expecting a win but lose.  On this same thread, clients need to know that lawyers cannot win every case and that it is a gamble to bring a suit and be willing to accept not just the good, but the bad and the ugly too.