Financial costs include both out-of-pocket expenses—legal fees and expert witness fees, among other costs—and the "monetary value of the time clients spend on the case." David M. Even those who prevail may find the process too costly." (footnotes omitted)); David Luban, Settlements and the Erosion of the Public Realm, 83 GEO.
Methodology
All lawyer subjects participated in all three experimental scenarios discussed in this section. We drew conclusions about the effect of the independent variable on litigants by comparing Group A and Group B responses.
External Validity
Subjects.-Our sample of litigant and lawyer subjects is not necessarily representative of the general population of litigants and lawyers
Their thought processes may not, on average, reflect those of the average lawyer involved in settlement negotiations. At worst, we believe that our findings provide a valuable snapshot of part of the litigation world.
Observed Lawyer-Client Differences
Decisionmaking and the Impact of Reference Points
We placed the request for clarification at the end of the survey material in an attempt to minimize its impact on the subjects' answers, although we think it was probably unnecessary: we believe lawyers usually feel obliged to make their recommendations to their clients explain. In one study of this phenomenon, Joyce and Biddle divided professional auditors into two groups and exposed each to a different anchor.95 The members of Group A were asked to indicate whether they thought management fraud had occurred in more than ten of the one thousand. . companies audited by Big Eight accounting firms. Group B members were asked to indicate whether they thought management fraud had occurred in more than two hundred of the one thousand companies audited by the Big Eight firms.
The experimenters tested whether these numerical anchors—“ten” for Group A, “two hundred” for Group B—would affect responses to a second question they asked members of both groups: “What is your estimate of the Big Eight number customers per 1,000 who have significant executive-level management fraud?" Group A subjects averaged 16.52 fraud incidents per thousand, while group B subjects averaged 43.11 fraud incidents per thousand. evaluations of subjects .97. The initial value, or starting point, may be suggested by the problem formulation, or may be the result of a partial calculation.
So the expected (and actual) value of the settlement offer was $12,000 plus the value of the car. An initial offer of 10,000 to Group B would cause subjects to rate the decisions differently depending on the version of the scenario they received. In contrast, the value of the initial settlement offer had no significant effect on the legal entities.
Although the statistical analysis is inconclusive, the anecdotal responses of the subjects support the hypothesis that the subjects were less influenced by the opening offer anchor. As with the car crash scenario, litigants' responses in the Lemon scenario can be explained by a different effect of the independent variable than we hypothesized.
Equity Seeking
Testing the Impact Lawyers Have on the Settlement Decision
Determining which of the competing hypotheses has the most explanatory power, however, would advance our understanding of the role of lawyers in litigation and could be a fruitful topic for future research. Landis, Annotation, Attorney Conduct in Connection with the Settlement of the Client's Case as a Basis for Disciplinary Proceedings, 92 A.L.R. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 MD. 2 6 Each subject received the BMW Driver version of the Automobile Accident scenario and the Broken Promise version of the Broken Heater scenario, each with one modification.
For an example of previous experimental work on the effectiveness of the lawyer in influencing the outcome of settlement discussions, see Korobkin & Guthrie, Psychological Barriers, supra note 16, at 160-64 (describing some initial experiments designed to to evaluate such ability). Subjects were screened to ensure that none of the 149 participants in the Lawyer Influence experiments had participated in any of the original series of experiments.
The Lawyer as Educator
The Psychology Lesson.-The most direct way for a lawyer to educate a client about psychological factors that might affect litigation
This decision can produce good results (half of the people who choose the riskier option will lose nothing) or bad results (half of the people who choose the riskier option will lose $1000). Your attorney has made it clear that “it is up to you to decide whether to accept or reject the settlement offer.” However, your attorney has advised you to be aware of the psychological bias that many people exhibit when making settlement decisions. When people view the other side as blameworthy, they often allow their desire for justification to influence their evaluation of the offer.
Consider the opposite. Psychologists have hypothesized that errors in judgment can arise when people consider only one side of an aspect.
Your attorney has made it clear that “it is up to you to decide whether to accept or reject the settlement offer.” However, your lawyer has advised you to think carefully about your decision, pointing out both the negative and positive aspects of the settlement offer. However, your attorney has also noted that the settlement offer will leave you better off than you are now and allow you to avoid a trial, the outcome of which is uncertain. Your attorney has recognized that accepting this settlement offer may not be as satisfactory as a possible small claims court judgment against the landlord.
However, your attorney also noted that accepting the settlement offer would allow you to recover damages and avoid a possible small claims court ruling in favor of the landlord.
The Lawyer as Decisionmaker
Recommendation with Expected Value Explanation.-In our third Lawyer Influence experiment, the lawyer recommends settlement and
The reasoning is based on the information presented in the Consider the Opposite manipulation approach, but here the information is presented with the intention of convincing the client to settle. Your attorney has informed you that “it is up to you to decide whether to accept or reject the settlement offer.” However, your attorney recommends that you accept the offer for the following reason: If the landlord had a good excuse for not being able to fix the heater, $900 would probably seem like a reasonable offer given your inconvenience. The fourth Lawyer Influence Experiment – which most clearly reflects the view that the lawyer is an experiment – simply informs the client that the lawyer is recommending a settlement.
The lawyer does not explain how and why he came to this conclusion and why the client should agree with his assessment; rather, this manipulation implicitly suggests that the client should substitute his lawyer's judgment for his own. Your attorney has made it clear that “it is up to you to decide whether to accept or reject the settlement offer.” However, your lawyer has advised you to accept the offer.
Experimental Results
Considering Lawyers' Impact on Settlement Rates A. Lawyers as Settlement Promoters
Miller, supra note 144, at 198–202 (demonstrating that under traditional contingent fee arrangements, attorneys will prefer to settle at lower monetary levels than plaintiffs); Schwartz. For every plausible claim that attorney fee arrangements have a unidirectional effect on settlement rates, there is an equally plausible claim that they might reduce lawyers' long-term financial incentives in the opposite direction. In short, the assumption of the fee literature is that lawyers will seek to maximize theirs.
cataloging a variety of reasons that attorneys with different financial and reputational incentives might encourage or hinder settlement). See Mendelsohn, supra note 151, at 143 (speculating that successful litigants may have an incentive to settle moot cases to avoid risking a "blemish" on their litigation scorecard).
Lawyers and the Efficiency of the Litigation System
6 According to Binder and Price, the model's most notable advocates, the lawyer's actual role is completely process-oriented.67 The lawyer can help clients. How the lawyer wraps the choices will always affect the way the client evaluates them. Binder and Price suggested that the lawyer respond to requests for advice by explaining that she is unable to know the client's value system and by offering to facilitate the client's decision-making process.
Ellmann argued that the client-centered model is manipulative because it dictates the very decision-making process pursued by the attorney and client. Other legal ethicists view the attorney-client relationship as a limited friendship." According to this view, no person is completely autonomous,'86 and honest advice is more beneficial than destructive to the service of the client's values." s Kronman's conception of a lawyer takes this analogy a step further.
The Cognitive Error Approach to Lawyering
Normative Implications.-Although everyone's decisions are affected by psychological phenomena and aided by heuristics, lawyers are
Clients' dissatisfaction with legal representation often results from the attorney's inability to view the client's emotional self as anything other than an obstacle to sensible, rational management of the legal problem. At the same time, however, the lawyer must recognize that the client's stated preference may be utility-maximizing even if it deviates from the expected value analysis. Recall that the second group of Broken Promise subjects who participated in the Lawyer Influence experiments were significantly more likely than the original Broken Promise subjects to accept the defendant landlord's settlement offer.
The results of the lawyer influence experiments suggest that an explanation together with a recommendation can reduce the likelihood that the client will follow the lawyer's advice. Our recommendation that counsel provide such an explanation in difficult cases reflects the need to balance the power of an unmitigated recommendation with the uncertainty about the effectiveness of that power.
Conclusion: The Legal System and Psychological Aspirations Our experimental results support the hypothesis that lawyers, on
The regulatory approach does not deny the value of loyalty to the client, but it does require the lawyer to balance such loyalty with a responsibility to third parties, including the legal system or society at large. Some have argued that the marginal costs of a single lawsuit are overestimated because a higher settlement rate would only encourage other disputes to enter the legal system. Whether it is ethically permissible or obligatory for the lawyer to try to convince a client to give up his aspirations depends not only on the extent to which the lawyer must weigh the public interest against the interests of his client, but also of the interests that the legal system tries to promote. a particular dispute.
Undoubtedly, there are situations in which society wants the legal system to justify psychological or emotional desires. The tort of defamation, for example, provides a means of protecting reputation by invoking the legal system.
