“Rethinking Our Approach: Are we getting it wrong when it comes to defending clients and insurers?”

-Lori Wirkus and Matt Cianflone


Originally published in The CLM Magazine

A client has hired you to offer sound, legal advice; to represent him zealously. Naturally, as an esteemed lawyer, you rely upon your years of experience, historical judgment, and legal acumen. The client is looking for guidance or even assurances. Your legal muscle memory kicks into action, and you approach the problem the way you have time and time again throughout your career. But even if your approach to solving legal problems is successful, is it correct? Are you offering the proper guidance? Ask yourself, do you take enough time to examine whether you should employ a different approach? 

The reality is that lawyers and insurance professionals make bad decisions every day as a result of cognitive biases. We have all seen it: the overwhelming predisposition to assume all plaintiffs are faking or exaggerating their injuries, the “high fives” we give each other when we catch someone in a lie during a deposition, and we predict that a prospective jury will see right through a plaintiff’s charade. But maybe it is time to take a hard look at what we’re telling clients and ask ourselves, “Are we getting it wrong?”

Let’s look at several assumption-based mistakes we make when advising defense clients.

Assumption 1: You are competent to make statistical predictions. You are defending a personal injury case. You have read the complaint, reviewed the medical records, and familiarized yourself with the allegations and the law. You know your case. Now it is time to crank out that initial case report.

It is a time consuming, yet worthwhile, exercise for you and the client as you are forced—perhaps for the first time—to think through the strategy of your case. Then you hit the section where the client asks for assurances, calling on you to predict the outcome. You understand what the client wants, but your palms still get a little sweaty because you know, deep down, you cannot do that. But you push those feelings to the side, you call upon all of your experience and training, and you start writing down some numbers. “If we try this case 10 times, we are likely to get a defense verdict seven out of 10 times.”

At this point, you should look up from your keyboard and scream. Seven out of 10 times? What legal statistics class did you take in law school? What lawyer has ever tried the same case 10 times? Why is that the benchmark? Is that the same thing as having a 70% chance of winning? Where are you getting these numbers? What does your data tell you?

You are not a statistician. This isn’t “Moneyball,” so stop making these kinds of predictions. And if you are making these predictions and you are consistently right, then you’ve made the wrong career choice; you should be buying a one-way ticket to Vegas.

Recommendation: Stop with the statistical predictions when you are doing nothing more than guesswork. It’s great to review and analyze data when you have it, but few areas of the law have any actual substantive data from which you can extrapolate useful predictive measures (criminal convictions and medical malpractice verdicts are some of the more common exceptions).

You are there to tell clients what could happen. When it gets into the realm of what “will” happen, unless you have solid data supporting your position or a secret crystal ball that accurately predicts the future, you are just guessing. And your client will, in turn, be making serious financial decisions based on nothing more than speculation, conjecture, and surmise. Defense counsel eviscerates plaintiffs when they do this; why should offering advice to your clients and their insurers be any different?

Assumption 2: Once you form an opinion, you have to stick to it. One of the occupational hazards of the defense lawyer is the reluctance (and, in some cases, our clients’ reluctance) to revisit and revise opinions and judgments about a case. Situations change, and game plans need to be revised. Lawyers, insurers, and defendants cannot afford to maintain stagnant, biased thinking. If you are to gain any kind of strategic leverage in litigation, you must have the courage to look at cases and risk management issues as they are, and not through the lens of wishful thinking.

Recommendation: Maintain your flexibility, reevaluate your positions, embrace uncertainty, and be honest about it with your clients. In defense litigation, it is necessary to review and revise (continuously) your opinions to ensure they accurately reflect the current state of the case.

Assumption 3: You are making unbiased evaluations about the strengths and weaknesses of the case. Irving Janis, the long-deceased Yale psychologist, published his book “Groupthink” in 1973. The premise was simple: A collection of like-minded individuals from the same backgrounds and with the same internal biases were prone to specific errors of collective thinking. Simply stated, the concept of groupthink runs rampant in the legal industry. Everyone has internal cognitive biases. These biases can, in some instances, be used for strategic advantage. In most cases, however, they may just sow the seeds of destruction (at least in a professional sense)—particularly when we are telling defense clients what they want to hear and not what they need to hear.

Think about the concept of groupthink in the context of jury selection. Jury selection is one of the sexier aspects of litigation. Voir dire is like sitting at the cool kids’ table in high school, where you are empowered to make judgments about others: to make split-second decisions about the meaning of where people live, what they do for a living, what they wear, how they voted, and how they responded to your questions (which are specifically designed to trip them up, if we’re being honest).

This is when our own cognitive biases run amok. We rely on our defense mindset, which is reinforced in the huddle meetings we have with our clients and the insurers. We rely on anecdotal evidence and snap judgments—some of which may be accurate; some of which are dangerously wrong. And we are scared to admit the significant role that both luck and timing play in one’s professional success (and failure).

Recommendation: Be wary of groupthink. In our experience, claims professionals, in-house counsel, and lawyers as a collective group are prone to certain like-minded cognitive biases. We are not suggesting everyone needs to be a professional behavioral psychologist, but, instead, keep an eye on these internal tendencies within yourself and your clients, because when groupthink invades risk analysis, it can be dangerous.

As counselors, we must all allow our thinking to evolve, and we need to encourage our clients to be open to this case-analysis evolution. Doing things the way we have always done them is not good enough. The months ahead are a call to creativity. There is no need to throw out our years of experience, successful strategies, and winning tactics, but we need to be mindful not to fall into the trap of a “this is the way it’s always been done” attitude and, instead, to foster new approaches and adapt to win.