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Forecasting Trial Outcomes: Lawyers Assign Higher Probability to Possibilities That are Described in Greater Detail

NCJ Number
Law and Human Behavior Volume: 26 Issue: 2 Dated: April 2002 Pages: 159-173
Craig R. Fox; Richard Birke
Date Published
15 pages
This article analyzes support theory as it relates to attorneys' ability to correctly anticipate a particular trial outcome.
The six studies pertained to tort, custody dispute, and antitrust cases. The first three studies tested binary complementarity (sum to one) and subadditivity (yield sums greater than one). Studies 4 and 5 tested implicit subadditivity (breaking down a case into components that generally yield greater than one). Study 6 evaluated implicit subadditivity as it relates to decisions endorsed by attorneys. In each of these six studies, strong evidence was presented that attorneys were susceptible to bias in estimating trial outcomes. Bias showed up in a variety of ways. As might be expected, the higher the probability of a favorable outcome, the less likely the attorney would settle or compromise. If an attorney provided greater detail (unpacking the case) to the client as to how they might prevail, there was a higher chance the client would reject the offer. On the contrary, when attorneys advised clients on ways they might lose, clients had a tendency to accept a settlement. Recommendations to compensate for potential bias are provided. Tables, references