Who’s in charge? Homer Simpson or Mr. Spock?
Cognitive obstacles to finding common ground.
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Mediator / Negotiator
John Philip Miller
Baltimore City Circuit Judge (ret.)
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Improve your negotiation strategy and outcomes.
Mediator, arbitrator and settlement conference neutral Jeff Trueman says the lawyer’s mind can sometimes play tricks on them when it comes time to settle a claim. “The central question on the minds of counsel, their clients, and insurance professionals in civil litigation is, of course, ‘What’s the case worth?’ For mature torts there is enough historical settlement and verdict data exist for counsel to argue why a particular case should or should not fit within a certain settlement range. In the midst of these discussions, the human brain plays tricks on us. For example, litigators sometimes assume that their trial experience can determine how jurors will negotiate with one another and resolve factual discrepancies after closing arguments. This assumption is a ‘heuristic’ – a cognitive shortcut called attributional error or illusion of control.” Backed by his decades of psychological and economic sciences research, Trueman says there is a lot of room for attorneys to change their mindset when moving into settlement mode.
“When differences over case value intensify, litigators return to threats of relinquishing control: ‘Maybe we have to try this case;’ or ‘We feel good about our chances in front of a jury.’ Underneath the games of litigation chicken that are the hallmark of settlement negotiation, heuristics lead to erroneous valuations and assessments of risk.”
He says attorney would be well served, and would serve their clients well, if they make adjustments depending on their role at a given point in the process. “Many lawyers default to their role as advocates for legal rights without considering the quality of counsel they give to clients regarding risk management. This plays right into the endowment bias that potential clients carry, valuing property or experiences merely because they have them. When thinking about future risk, many lawyers exhibit an overconfidence and self-serving bias in favor of past success. Unfortunately, competitive bargainers are disinclined to compromise even when it would benefit their bottom lines. Of course, it goes without saying that clients are often better served by lawyers who have some experience in a courtroom. But prior success does not guarantee future results.”
Learn what else Jeff has to say on the subject. He was joined by Judge John Philip Miller, now retired from the Circuit Court of Baltimore City. Judge Miller spent 16 years on the bench after a career in private practice.
What they over:
+ What are the cognitive barriers to assessing case value?
+ How can you use this information to your advantage?
+ How can you help your clients with this information?
+ What is the impact of unrealistic expectations — yours and your client’s?
+ Answers to your questions. Send them by email to Questions@LitigationConferences.com.
Jeff Trueman | Mediator / Negotiator
Jeff is a private mediator of litigated civil disputes, including personal injury, premises liability, toxic and environmental torts, wrongful death, professional malpractice, partnership dissolution, employment, domestic, and guardianship petitions. He is a public speaker and presenter of mediation and negotiation-related dynamics at law schools, law firms, and litigation conferences. Jeff is author of an ADR column that appears semi-regularly in the Maryland Daily Record.
Judge John Philip Miller (ret.) | Baltimore City Circuit Court
Judge Miller served on the bench for more than 16 years both in District and Circuit Court. Prior to his appointment to the bench, Judge Miller was a partner with Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., and with Wright, Constable & Skeen, LLP. Judge Miller received a Juris Doctorate from Washington and Lee University School of Law and a Bachelor of Arts Degree from Gettysburg College. He was an adjunct professor with the Villa Julie College, an instructor with the Maryland Institute for Continuing Professional Education of Lawyers, and a lecturer at the Maryland Judicial institute. His honors include the Daily Record’s Leadership in Law Award.