Written by Katie Porter
Elizabeth Loftus (UC-Irvine Law) has co-authored a new paper on lawyers’ abiliy to predict outcomes in litigation. She and her colleagues surveyed about 500 lawyers with pending litigation, asking them to specify a minimum goal for their case and providing a confidence estimate for the chances of meeting that goal. The key finding: “Overall, lawyers were overconfident in their predictions.” The article lays out all the ways that this can be harmful to clients, and to our legal system in general.
I’ve been thinking about the role of law schools, and legal educators, in cultivating this optimism bias. The researchers find that lawyers don’t get better at estimating outcomes with more years of experience; recent grads and old hands are equally likely to overestimate their odds of success. How can law schools counter this overconfidence? What are the risks of doing so?
In particular, I note that the researchers found that female lawyers showed less evidence of overconfidence, and I worry that in trying to teach our students to have more realistic expectations for lawyering, that women will “overlearn” the lesson relative to men. While this might make women better lawyers in some important ways, I think it’s pretty clear that confidence and bravado are valued skills in the litigation context–and in law schools. I also thought it was notable that the authors suggest their findings and similar work be introduced to students in clinical practice and professional responsibility courses. I think this advice says something about perceptions about how narrowly the traditional law courses are taught. I try to talk to my students about outcomes–only one in three chapter 13 bankruptcy cases gets to completion; most invalid security interests slide by because most businesss pay; consumers don’t enforce this or that right because its too expensive and complicated to do so. But my textbooks are written by self-described “died in the wool legal realists” whose casebooks are informed throughout by data.
To what extent should we cultivate in our students a sense of law’s power and their own power to wield the law? Or to what extent does law school teaching need to itself be better calibrated to reflect our students’ likely outcomes?