09 December 2011

Should Good Lawyers Be Delusional?

Newt (can we be on a first-name basis?) has a special place in my heart because he exemplifies a theory I've long held about success: If you have enough bravado, you can rise to the top. I've seen this over and over again in law firms, where lawyers with modest talents rise to partnership, while some of their smarter and much more hardworking colleagues get left in the dust. If this doesn't give us hope about upward mobility, I don't what will.

But this is not as simple as it might seem: Not only do you have to project superiority, but you have to believe in it too--even in the face of evidence to the contrary. ... Being self-important (and I don't mean just being confident) is really a career propeller.

From here.

Put aside the individual mentioned in the first word of the quote above. This post isn't about him. This post is about the notion of entitlement and arrogance, even when delusional, as a formula for success. Most big law firm lawyers take this as a matter of faith. I've seen it work in politics in every party and in non-partisan races. Examples of this strategy working in fiction (often by someone who is born noble or rich but has not been recognizes as such) are legion. Macolm Gladwell is a believer in this theory.

To the extent that it does work, is may be a product of results that flow from confidence which manifests itself in interpersonal interactions, but it may also be a reflect the way that we evaluate risk. Lawyers aren't immune. Direct studies of trial lawyers have shown that their aggregate expectations are wildly out of line with reality, even when they have immense experience and expertise. Lawyers are in the business of making their best efforts, not picking winners and losers. Most people are risk averse, and so we systemmically underestimate our actual chances of success by following rules of thumb designed to avoid down side losses. Someone facing 19-1 odds may seem doomed, but one in twenty times, he or she will prevail. And, if the odds are so daunting because lots of people faced with them automatically concede without rolling the dice, the actual odds if one goes to the mat on an issue may be much higher than you think.

Unlike lottery prizes, where 100-1 risks produce $50 prizes, real life often over rewards those who take extreme risks, since most people do the sensible thing given their situation.

You see something similar in attorneys' fee shifting provisions in contracts. In theory, people evaluate the risk of being required to pay attorneys' fees into the calculus of risk when they take a settlement position. In practice, behavioral economics rules and almost nobody ever acts consistently with that theory. The rules may give lawyers the courage of their convictions to do what they felt was the right thing anyway in the face of pressure from a client, as a post hoc rationalization, but the risk that one will lose and suffer an attorneys' fee award produces an escalation of a conflict at least as often as it leads to compromise.

Footnote: Newt Gingrich has the quite admirable role model of Hari Seldon.

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