Three reasons why lawyers, being human, are bad at making predictions

Ian Ayres, Super-Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) at 112, explains that “The human mind tends to suffer from a number of well-documented cognitive failings and biases that distort our ability to predict accurately.” Ayres gives three examples, each of which crops up in-house.

We tend to weight unusual events that seem salient too heavily. The unusual decision, the famous partner, the dramatic mistake all might unduly influence a lawyer. “Remember that one closing where we didn’t have six copies!”

Second, we have a tendency to discount disconfirming evidence and focus instead on whatever supports our pre-existing beliefs. A lawyer doesn’t read about processes that don’t fit within the lawyer’s framework. “Offshoring? It won’t ever make it!”

Third, Ayres writes that most people are too confident about what they think they know. “That Supreme Court decision came down in 1981,” some lawyer thunders, “and I’m certain of it!” Perhaps.

Worse, and the point of this post, is that “these problems of bias and overconfidence become more severe the more complicated the prediction” (at 114). Experienced lawyers revel in complex legal problems, but their prognostications may not be able to keep up (See my post of Nov. 6, 2006: expert lawyers work hard to get there; and May 1, 2005 and March 18, 2005 about negative connotations.).

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