BEYOND RIGHT AND WRONG THE POWER OF EFFECTIVE DECISION MAKING FOR ATTORNEYS AND CLIENTSPDF电子书下载

1 Introduction 1

1.1 Purposes and Premises of this Book 3

1.2 Organization and Philosophy of this Book 4

1.3 What Attorneys Think About Other Attorney's Decision-Making Skills 6

Part Ⅰ Evidence 11

2 Prior Research on Attorney-Litigant Decision Making 11

2.1 The Paradox of Copious Lawyers and Scant Data 11

2.2 Empirical Legal Research on Judge Jury and Attorney Decision Making 15

2.2.1 Judge-Jury Agreement 17

2.2.2 Punitive Damages 19

2.2.3 Judges' Assessments of Juries 19

2.2.4 Attorney-Jury and Attorney-Attorney Agreement 20

2.2.5 Attorney-Litigant Negotiation Positions,Assessments and Outcomes 20

2.2.6 Disparities In"Same Case"Evaluations and Outcomes 21

2.2.7 Comparisons of Predictions and Outcomes 22

2.2.8 Damages Award Predictions 23

2.2.9 Overview of Judge,Jury and Attorney Decision Making 24

2.2.10 Attorney-Litigant Decision Making in Actual Cases 24

2.2.11 Kiser,Asher and McShane Study of Attorney-Litigant Decision Making 27

2.3 Chapter Capsule 27

3 A Current Assessment of Attorney-Litigant Decision Making In Adjudicated Cases 29

3.1 The Fifty Percent Implication 31

3.2 New Data 32

3.2.1 The Four Datasets 32

3.2.2 VerdictSearch Publications 33

3.2.3 Case Database Selection Criteria 34

3.2.4 Attorneys in Dataset 35

3.3 Concepts and Definitions 36

3.3.1 Negotiation Disparities and Decision Error 38

3.3.2 Underpricing 39

3.3.3 Overpricing 39

3.3.4 Negotiation Disparities Without Decision Error 40

3.3.5 Effect of Negotiation Disparity on Decision Error 41

3.4 Overall California Results 42

3.4.1 Costs of Decision Error 42

3.4.2 Negotiation Disparities 44

3.5 New York Results 45

3.6 40-Year Historical Study 46

3.6.1 Historical Decision Error 46

3.6.2 Historical Cost of Decision Error 47

3.7 Attorney-Mediator Results 48

3.7.1 Attorney-Mediator Decision Error 49

3.7.2 Attorney-Mediator Negotiation Disparities and Settlement Rates 51

3.7.3 Tentative Conclusions About Attorney-Mediators 51

3.8 Predictor Variables 52

3.8.1 Context Variables Trump Actor Variables 53

3.8.2 The Five Major Context Variables 54

3.8.3 Two Secondary Context Variables 71

3.8.4 The Major Actor Variables 76

3.9 Chapter Capsule 85

Part Ⅱ Causes 89

4 Psychological Attributes of Decision Errors 89

4.1 Perceptions of Adversaries and Conflicts 91

4.1.1 Fundamental Attribution Error 92

4.1.2 Selective Perception and Memory 97

4.1.3 Self-Serving Bias 102

4.1.4 Reactive Devaluation 104

4.1.5 A Practical Example Of Overcoming Self-Protective Biases 107

4.2 Evaluations of Risk and Reactions to Perceived Risk 108

4.2.1 Framing 111

4.2.2 Anchoring 115

4.3 Reactions to Threatened Changes in Position and Status 120

4.3.1 The Endowment Effect 120

4.3.2 Status Quo Bias 122

4.3.3 Overconfidence 124

4.3.4 Confirmation Bias 126

4.3.5 Representative and Availability Heuristics 129

4.3.6 Hindsight Bias 132

4.3.7 Discounting Of Future Payments and Costs 133

4.3.8 Sunk Cost Bias 136

4.4 Chapter Capsule 139

5 Institutional Impediments to Effective Legal Decision Making 141

5.1 Law School Education 143

5.1.1 Separation of Legal Education from Legal Practice 144

5.1.2 Testing Law Students'Reasoning Skills and Moral Judgment 145

5.1.3 An Example of Law Student Decision Making 148

5.1.4 Deficiencies in the Case Method of Teaching 150

5.1.5 Attempts to Change Law School Curriculum 156

5.2 Law Firms 164

5.2.1 Conflicts Between Efficient Problem Solving and Billable Hour Requirements 166

5.2.2 The Consequences of Avoiding"The Big Picture" 169

5.2.3 "Due Process"and the Elevation of Process Above Results 172

5.2.4 Competitive Market Pressures,Undue Deference to Client Expectations and Inappropriate Client Involvement 174

5.3 Mental Impairment 182

5.4 The Disappearing Civil Trial 188

5.4.1 Settling Without Benchmarks 189

5.4.2 Causes and Motivations for Pre-Trial Settlements 192

5.5 Chapter Capsule 195

Part Ⅲ Consequences 199

6 Legal Malpractice Liability For Settlement Counseling and Decision Errors 199

6.1 Malpractice Claims Data 200

6.2 Competing Policy Considerations 202

6.3 Malpractice Claims Arising from Settled Cases 204

6.3.1 Inadequate Advice Regarding Settlement and Trial Prospects 206

6.3.2 Client Coerced into Settlement by Attorney 209

6.3.3 Attorney's Mistakes Prevented Client from Obtaining a Better Settlement or Prosecuting Case to Trial 211

6.3.4 Attorney's Delays Caused Client to Forego More Favorable Settlement Terms 214

6.3.5 Conflict of Interest,Fraud and Collusion with an Adverse Party 215

6.3.6 Attorney Did Not Transmit Settlement Proposals to Client 218

6.3.7 Failure to Conduct Adequate Legal Research,Discovery and Investigation Before Settlement 219

6.3.8 Attorney Not Authorized to Consent to Settlement Agreement 223

6.3.9 Settlement Agreement Defectively Drafted 225

6.3.10 Client Misunderstood the Settlement Agreement 226

6.3.11 Failure to Advise of Uncertainty of Law and Anticipate Judicial Error 227

6.4 Malpractice Claims in Adjudicated Cases 231

6.4.1 Attorney Remiss In Failing To Initiate Settlement Negotiations,Solicit A Pre-Trial Settlement Offer Or Otherwise Effectuate Settlement 232

6.4.2 Client Inadequately Apprised of Risk of an Adverse Verdict 235

6.5 Defenses to Settlement Malpractice Claims 237

6.5.1 The Client's Consent Bars a Challenge to the Adequacy of the Settlement Agreement 238

6.5.2 The Client's Ratification of the Settlement Agreement 240

6.5.3 The Client's Failure to Prove Reliance on the Attorney's Advice 240

6.5.4 The Judgmental Immunity Rule and the Califomia Model Limitations 241

6.5.5 The Client Cannot Prove Damages Proximately Caused by the Attorney's Negligence 243

6.5.6 Another Attorney's Negligence as an Intervening or Superseding Cause 245

6.5.7 Reduction of Malpractice Awards by the Amount of Attomeys Fees the Client Otherwise Would Have Paid the Attomey 246

6.6 Chapter Capsule 247

7 Ethical Implications of Attorney-Client Counseling and Decision Making 249

7.1 A Profile of Disciplinary Actions 250

7.2 The Duty to Communicate all Material Facts and Events to Clients 252

7.3 The Duty to Exercise Independent Judgment and Render Candid Advice 257

7.4 The Duty to Provide Adequate Advice to Enable Clients to Make Informed Decisions 260

7.5 The Duty to ldentify and Protect Clients with Diminished Capacity 262

7.6 The Duty to Competently,Independently,Diligently and Expeditiously Represent Clients 266

7.7 The Duty to Abide by Client Decisions 270

7.8 The Duty to Prevent Conflicts of Interest in Aggregate Settlements 272

7.9 The Duty to be Candid and Truthful in Communications with Clients,Opposing Counsel and the Courts 274

7.10 Chapter Capsule 279

Part Ⅳ Solutions 283

8 Obstacles to Becoming an Expert Decision Maker 283

8.1 Defenses and Barriers to Sound Decision Making 284

8.1.1 Defenses to Learning 285

8.1.2 Distortions of Reality 288

8.1.3 Attorney Belief System Defenses 293

8.2 Myths and Misconceptions About Decision Making Expertise 295

8.2.1 Intelligence 296

8.2.2 Education and Experience 298

8.2.3 Peer Ranking 302

8.2.4 Intuition 303

8.3 Chapter Capsule 307

9 Personal Expertise in Legal Decision Making 309

9.1 Phase One:Finding 310

9.1.1 Still The Messenger 311

9.1.2 Bottom-Up Decisions Beat Top-Down Decisions 311

9.1.3 Challenge Your Perceptions 313

9.1.4 Give Vivid Pictures Time to Fade 314

9.1.5 Credit Randomness its Due 315

9.1.6 Deal with Attribution Errors Early 316

9.1.7 Diversify the Team 317

9.1.8 Time Does not Take Sides 318

9.1.9 Align Client Objectives and Attorney Incentives 319

9.1.10 Consider Appointing Separate Settlement Counsel 321

9.2 Phase Two:Binding 322

9.2.1 Start with Ideals 323

9.2.2 Switch Sides to Debias Judgment 324

9.2.3 Think Divergently 325

9.2.4 Stop Pattern Matching 326

9.2.5 Work Well with Others 327

9.2.6 Consider Whether a Litigation Attorney or a Trial Attomey is Required 328

9.3 Phase Three:Solving 330

9.3.1 Don't Follow Your Gut 330

9.3.2 Search for Disconfirming,Discrepant Facts 332

9.3.3 Pay Attention to Base Rates 333

9.3.4 Prepare to Justify Your Case 334

9.3.5 When in Doubt,Act it Out 335

9.3.6 Step Off the Information Treadmill 336

9.4 Phase Four:Testing 337

9.4.1 Find Your Inner BATNA 338

9.4.2 Separate Facts from TheoriesValues and BeIiefs 339

9.4.3 Enlarge the Pie Before Cutting 340

9.4.4 Subjective Faimess Matters 341

9.4.5 Think and Communicate Affirmatively 342

9.4.6 Depressed People Make Depressing Deals 343

9.4.7 Fatigue Stifles Creative Problem Solving 344

9.4.8 Use Email Carefully 345

9.4.9 Get a Grip on Mongo 347

9.5 Phase Five:Choosing 348

9.5.1 Perform a Premortem on Overconfidence 349

9.5.2 Take the Outside View 350

9.5.3 Keep Positions Aligned with Facts 351

9.5.4 Separate the Primary Decision from the Secondary Decision 353

9.5.5 Assumptions Were Made to be Explicit and Tested Continuously 354

9.5.6 Walk Around the Sunk Cost Trap 354

9.5.7 Past Performance Is No Guarantee of Future Results 355

9.5.8 Funny Things Happen on the Way to the Forum 356

9.5.9 Linear Thinking Leads to Impasse 357

9.5.10 Appeals are Part of the Settlement Equation 358

9.5.11 Moderate the Mediator 359

9.6 Phase Six:Checking 362

9.6.1 Pin Yourself Down for Some Real Feedback 363

9.6.2 Don't Just Provide Feedback-Discuss it 364

9.6.3 Learn from Surprises 365

9.7 Chapter Capsule 366

10 Group Expertise In Legal Decision Making 367

10.1 Deficiencies in Group Decision Making 368

10.1.1 Elements of Defective Group Decisions 370

10.1.2 Group Polarization and Groupthink 371

10.2 Characteristics of Effective Decision-Making Groups 376

10.2.1 High Reliability Organizations(HROS) 377

10.2.2 Expert Teams 383

10.3 Steps to Improve Group Decision Making 385

10.3.1 Ask For Multiple Opinions 385

10.3.2 Cross-Pollinate the Team 386

10.3.3 Proliferate Team Leaders 387

10.3.4 Appoint a Devil's Advocate 389

10.3.5 Seed the Brainstorm 389

10.3.6 Promote a Good Fight 391

10.3.7 Build Trust 392

10.3.8 Reach a Consensus.Don't Build One 394

10.3.9 Schedule a Last Clear Chance Meeting 395

10.4 Chapter Capsule 396

11 Peer Review,Client Evaluations and Law Firm Audits 397

11.1 A Brief History of Quality Management in Law Firms 399

11.2 Peer Review in the Medical Field 400

11.2.1 The Inception of Medical Peer Review 401

11.2.2 The Modern Medical Peer Review System 402

11.2.3 Confidentiality of Medical Peer Review 403

11.3 Peer Review in Law Firms 404

11.3.1 Priorities in Law Firm Peer Review 404

11.3.2 Confidentiality of Attorney Peer Review Proceedings 405

11.3.3 Professional Ethics and Attorney-Client Privilege 407

11.3.4 The Role of Confidentiality in Peer Review 410

11.3.5 The Structure of Law Firm Peer Review 412

11.4 Client Evaluations 413

11.4.1 Challenges of Evaluation Design and Analysis 414

11.4.2 Sample Questions to Probe for Decision-Making Skills 418

11.5 Assessments and Audits 419

11.6 Chapter Capsule 422

12 Conclusion 425

Appendix 431

Index 437