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.

Unfortunately, these situations are all too common and this can mean that legal disputes take far longer and cost far more than they really need to. The good news is that the right approach, from both clients and their lawyers, can help to minimise the risk of such scenarios.

In this article, we cover how confirmation bias can increase the risk of litigants pursuing cases with no realistic prospect of success, how court processes can increase the risk of confirmation bias, what litigants can do to ensure they are being pragmatic about their cases and how the Longmores team can help.

Need help resolving a dispute quickly and cost-effectively to your advantage? Please contact John Wiblin who will be happy to advise.

Key points for litigants to know about dealing with apparently hopeless cases

• In disputes, it is very easy for people to become entrenched in their positions and the outcome they want at an early stage, making them less likely to remain objective as the case unfolds and new evidence comes to light
• Confirmation bias can cause litigants and their lawyers to ignore evidence that undermines their position
• This can prevent people from realising that their case has flaws and that the other side may have a point
• The closer you are to a case and the more emotive the issue in dispute is, the harder it can be to remain objective
• Court processes require the sharing of evidence between opposing parties, but this doesn’t necessarily mean that both sides will make a realistic assessment of the relative merits of their cases
• Considering the other side’s case from their point of view and seeking dispassionate, outside opinions can help to provide perspective
• Reaching a settlement will almost always be faster, more cost-effective and less stressful, but this does not necessarily mean it is always the right option

How confirmation bias can compromise objectivity in legal disputes

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 does not 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 or 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.

Where the subject of a dispute is particularly close to our hearts, this can increase the risk of confirmation bias. If there is a specific outcome that we desperately want or that our sense of ‘natural justice’ tells us is fair, it can be harder to take on board any evidence that tells us this may not be a realistic outcome.

How court processes can increase the risk of confirmation bias

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 exchanges 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. And clients do not always welcome it when their advisors suggest that new information requires a re-evaluation of the prospects of success of a case that has already begun.

What can litigants do to avoid confirmation bias and be realistic about their cases?

Each side can know that the other also thinks they will win. Should that not 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.

You can also 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.

If you believe the other side has given in to confirmation bias, it can be helpful to consider why they are so set on believing they have a winning case in spite of the evidence to the contrary. If the matter in dispute is particularly emotive, there may be a way to respect the other side’s emotional needs without giving them something to which you believe they are not entitled.

Is it always better to settle a legal dispute than to go to court?

In most cases, an out-of-court settlement will be the best option for all concerned in a legal dispute, but this does not mean that taking a dispute to a court hearing is never the right choice.

The important thing is to understand that, if a court hearing is required, this will usually take significantly longer and involve higher legal fees than if you can settle. A court hearing will also be held in public, so the details of your dispute and the outcome reached will be public knowledge.

What this means is that litigants must very seriously consider the strength of their position and the value of the outcome they are seeking before taking things to a hearing. While a settlement might not always give you the exact outcome you were hoping for, is the difference between what is being offered and what you might be able to secure in court really worth the time, cost and stress involved? Not to mention, the risk that the court’s decision may go against you and leave you worse off than if you had settled.

In some cases, the answer may be, yes, it is worth taking things to court. But this is why it is so important to make sure both sides are being realistic about the merits and flaws of their cases. Failing to remain objective can end up costing you a lot.

How Longmores can help with dispute resolution

At Longmores, our Dispute Resolution team have decades of experience supporting clients with a wide range of matters. We take a pragmatic, flexible approach to ensure that our clients receive the best possible results in the way that best matches their circumstances and goals.

Wherever possible, we will seek an early settlement to save our clients time, money and stress, but we are always ready to robustly defend clients’ interests where court proceedings are required.

For advice on any dispute resolution matters, please contact John Wiblin who will be happy to advise.

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.