Getting into the minds of litigants is no easy task. Few lawyers or lawyers-to-be receive any systematic instruction regarding the psychology of clients. Indeed, although lawyers interact with litigants extensively—often about sensitive matters with serious implications— lawyers frequently have little knowledge about what motivates litigants’ decisions about their cases, in part because there is a dearth of empirical research on litigants’ thought processes. Although polls and survey studies attempt to discover how lawyers think, civil litigants are seldom the direct subjects of similar inquiries (citations omitted).
This is from an interesting new paper, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures by Donna Shestowsky of UC Davis To help fill this gap, she conducted a longitudinal study about litigants themselves and how they chose procedures in their cases. How did litigants decide whether to mediate, arbitrate, or go to trial? Shestowsky surveyed litigants in California, Oregon, and Utah, all of which have some sort of ADR offered as part of the civil litigation process.
Unsurprisingly, she found that cost is a stable factor before and after, but her study goes much deeper. Here is the article abstract (unfortunately the whole article is behind a Wiley paywall):
This article presents findings from the first longitudinal study to ask civil litigants prospectively what criteria they plan to consider when selecting legal procedures and then retroactively assess the criteria used to make those decisions. The most commonly referenced ex ante criteria are lawyer’s advice, cost, and time. The retrospective reasons also include these factors, but the list is narrower and more practical. Litigants who initially listed a desire to reduce costs or follow their lawyers’ advice were later significantly more likely to report using procedures for these reasons, suggesting the stability of these criteria. However, the same stability did not manifest for other criteria. Implications for improving protocols for counseling litigants about procedure are discussed
She found that litigants considered a wide variety of factors before deciding on procedure, but afterwards in explaining their choices, they were much more prone to rely on practical considerations and highly constrained choices. This finding reinforces earlier findings that “litigants sometimes expect more from the legal system than it can ultimately deliver.” (Here she is referring to Tamara Relis, It’s Not About the Money!: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. Pitt. L. Rev. 701 (2007).)
One major factor throughout the process for represented litigants was attorney influence. Shestowsky’s deeper dive into litigants’ own preferences and choices led her to reinforce the value of open-ended conversations with clients:
Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views. When values differ, lawyers should not interfere with the client’s prerogative to work within her own values framework.
Hat tip to John Lande at the Indisputably blog on dispute resolution for sharing this interesting article. As John pointed out, lawyers don’t always know what their clients are thinking, and this study helps to address the disparity:
Donna’s research is particularly important because we know that litigants often have systematically different perspectives than their lawyers. It’s much harder to study litigants than lawyers and it is easy to assume, incorrectly, that lawyers’ responses in studies accurately reflect their clients’ perspectives.