Abstract

http://ssrn.com/abstract=2295063
 


 



How Lawyers' Intuitions Prolong Litigation


Andrew J. Wistrich


California Central District Court

Jeffrey J. Rachlinski


Cornell Law School

July 17, 2013

Southern California Law Review, Vol. 86, No. 571, 2013
Cornell Legal Studies Research Paper No. 13-91

Abstract:     
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities — such as the alleged greed of lawyers paid on an hourly basis — have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions — the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy — produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendencies to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation.

Number of Pages in PDF File: 67

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Date posted: July 18, 2013 ; Last revised: October 19, 2013

Suggested Citation

Wistrich, Andrew J. and Rachlinski , Jeffrey J., How Lawyers' Intuitions Prolong Litigation (July 17, 2013). Southern California Law Review, Vol. 86, No. 571, 2013; Cornell Legal Studies Research Paper No. 13-91. Available at SSRN: http://ssrn.com/abstract=2295063

Contact Information

Andrew J. Wistrich
California Central District Court ( email )
Los Angeles, CA 90012
United States
Jeffrey John Rachlinski (Contact Author)
Cornell Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5878 (Phone)
607-255-7193 (Fax)
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