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How Lawyers' Intuitions Prolong Litigation

67 Pages Posted: 18 Jul 2013 Last revised: 19 Oct 2013

Andrew J. Wistrich

California Central District Court

Jeffrey J. Rachlinski

Cornell Law School

Date Written: July 17, 2013

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.

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: https://ssrn.com/abstract=2295063

Andrew J. Wistrich

California Central District Court ( email )

Los Angeles, CA 90012
United States

Jeffrey John Rachlinski (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

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