Why can’t the Defendant see that they are wrong?

Clients often ask this question.The facts seem clear. The law seems clear. The other side have no case. But they carry on oblivious and all efforts to show them that they are on a hiding to nothing, fall on deaf ears. And that can mean that a court case that should settle early drags on and costs more.

We form impressions quickly and often before we have sufficient information.Then, as more information comes in, we consider it selectively and discard material that doesn’t support our early, sometimes hastily-formed, first impression. We are all susceptible to this kind of tunnel vision (psychologists prefer the term ‘confirmation bias’) to some degree of another.It can cause people to take losing cases to trial instead of understanding that the other side has a good point and settling the case at an early stage.

The court rules and pre-action protocols require parties and their solicitors to construct the framework of their case at the outset.That very process facilitates and fosters early confirmation bias.In putting together a claim or a defence, potential arguments are selected and discarded.Then several months are spent looking for further information (or ‘evidence’) that supports those arguments.When the stage in court proceedings is reached at which each party discloses relevant documents to the other and exchange witness statements, the parties search through the other side’s materials looking for further confirmation of their own hypothesis.

Nothing in that process encourages anyone seriously to review their initial position afresh.Information that tends to disprove the hypothesis is all too often overlooked in this process because we all find testing our beliefs to be very hard work! We all prefer to rely on our intuitive, immediate responses or understanding and we resist thinking matters through again.Unfortunately, lawyers are just as susceptible to confirmation bias as their clients are.

Each side can know that the other also thinks they will win. Shouldn’t that be enough to give them pause? It ought to have that effect. Almost certainly at least one side is firmly in the grip of confirmation bias and unable to see the weaknesses in their case.

The effects of confirmation bias can be reduced by putting in the effort carefully to consider, understand, and only then to evaluate the other side’s case.Try hard to reverse roles and mentally argue the case for the other side.Invite outsiders (who have not yet been subjected to your confirmation bias) to evaluate the other side’s case and give you their frank opinion.Repeat the exercise regularly in the course of a long case.

For advice on any Dispute Resolution matters, please contact John Wiblin.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.