As a social scientist focused on empirical data, I believe the following three statements are true. I’d be curious how many readers agree or disagree with my assessment: Continue Reading Missing in Action: Data-Driven Approaches to Improve Diversity (074)
Legal Evolution PBC is pleased to announce our first public event. On Tuesday, October 10, author and researcher Randy Kiser of DecisionSet® will give a lecture and Q&A session based on his recently published book, Soft Skills for the Effective Lawyer (Cambridge University Press 2017).
This event is graciously hosted by Chapman and Cutler LLP, 111 W. Monroe Street, Chicago, IL. The event will run from 6 to 7:15 pm in the building’s 8th floor auditorium (doors open at 5:30), followed by a reception at the firm. There is no charge for this event. However, advanced registration is required. You can register online here.
If you’re a lawyer or law student, the opening paragraphs from Kiser’s book, excerpted below, provide a powerful answer:
Anthony Sonnett, Ford Motor Company’s trial attorney, had nearly completed his cross-examination of Barry Wilson. After listening to Mr. Wilson describe how he showers, catheterizes, and frequently repositions his paralyzed wife, following an accident in which her Ford Explorer rolled over and fractured her spine, Mr. Sonnett posed his final question to Mr. Wilson: “The silver lining, to the extent that there could be one, it has brought you and Benetta [Mrs. Wilson] and the family closer together?” Mr. Wilson responded: “I think where we were together before, we are together after. I don’t think it’s done more for us. I think it’s — I don’t think it’s a benefit or a plus in any way. I am sorry, I don’t think I can see it that way.”
The jury returned a verdict against Ford for $4.6 million in economic losses, $105 million in noneconomic losses and $246 million in punitive damages. Reviewing the verdict on appeal, the California Court of Appeal honed in on Mr. Sonnett’s “silver lining question” and noted, “This question implied that the family should find a silver lining in what befell Mrs. Wilson. It may very well have been viewed as callous by the jury and might explain, in some manner, the actions of the jury in rendering a verdict so out of line with the amounts requested by the Wilsons’ own counsel.” The question, the court stated, “might well have inflamed the passions of the jury.” Concluding that the award against Ford was excessive, the court reduced the noneconomic damages award to $18 million and lowered the punitive damages award to $55 million.
The silver lining question, according to Adam Liptak, the Supreme Court correspondent of The New York Times, “was a legal classic that has echoed through the appeal of the case.” “The Wilsons’ case,” he opines, “suggests that a lot can turn on little things, including flat-footed lawyers and stupid questions.”
Attorneys can argue endlessly about the appropriateness and impact of the silver lining question. That argument obscures the fact that judgment calls like the silver lining question permeate a lawyer’s daily existence and are not resolvable by statutes, rules, regulations, appellate court opinions or practice guides. These judgment calls are invariably subjective and inherently dangerous; they tend to be more personal than rule-based, more intuitive than empirical. They require a broader set of skills than technical legal knowledge and analysis and necessarily implicate “soft skills” like sensitivity, discernment, empathy, perspective taking and foresight.
In making these judgment calls, whether cross-examining a witness or negotiating contract terms, attorneys rely heavily on their personal experiences and their sense for people. They ask themselves imponderable questions like: How am I coming across to everyone else in this room? Do they trust me? What do they expect of me? Have I realistically assessed this challenge? Am I adequately prepared? Is my sense of what is happening here affected by how I feel about something else today? What will I do if I fail here? This book is about these types of questions — how we pick the questions to ask ourselves about ourselves, how accurately we answer them and how we can improve the soft skills that are ignored in educational testing but turn out to be dispositive in life.
Over their fall break, current Indiana Law 2L and 3L students are eligible to enroll in Randy Kiser’s 1-credit course based on Softs Skills for the Effective Lawyer. We are very fortunate to have Chapman and Cutler LLP also host the class in their Chicago office. I am proud to have played a role in organizing the Kiser Soft Skills course and the Kiser public event.
Randy Kiser was a very successful practicing lawyer for 20 years before pursuing graduate studies in psychology and developing a second career as a researcher and consultant on lawyer decision making. Although Kiser has no permanent academic affiliation, his work on the legal profession is among the most rigorous, engaging, and important currently being published, with wide-ranging implications for society, practicing lawyers, and legal education.
Kiser’s 2008 article “Let’s Not Make a Deal” in JELS (the leading peer-reviewed empirical journal on legal topics) documents the pervasiveness of errors among lawyers in the decision to reject a final settlement offer and proceed to trial. Although plaintiffs’ lawyers were twice as likely to make a mistake (determined by getting a judgment less than the final settlement offer), defense counsels’ errors were vastly more expensive for clients — the average costing $43,000 on the plaintiff side versus $1.1 million for the defense. See 2008 NY Times article on Kiser’s research.
The message that comes through Kiser’s research is that all of these mistakes are fixable by becoming aware of a wide range of inherent human biases and taking appropriate corrective actions. Nonetheless we persist in our decision making ignorance, with clients suffering the economic consequences and lawyers wondering why their careers are stalling. For the last several years, I have integrated portions of Randy’s seminal book, How Leading Lawyers Think (Springer 2011), into both my Deliberative Leadership and Legal Professions course at Indiana Law. The book does extensive qualitative research on plaintiff and defense counsel who consistently make wise evaluative judgments and thus obtain consistently better client results when going to trial.
You can learn more about Kiser at his DecisionSet® website.
What’s next? See “Crossing the Chasm” and the “Hype Cycle” (024)