Guest Ben Gideon on Helping Trial Lawyers Assess Risk Better [Ep 138]
Guest Ben Gideon explores the complex world of risk assessment in trial law. Despite their bold reputations, trial lawyers often lean towards risk-averse strategies, favoring settlements over trials. Ben reflects on his recent trial loss to analyze cognitive biases in decision-making and emphasizes the importance of embracing risk to secure significant verdicts.
Drawing parallels between trial law and high-stakes poker, Ben discusses how both fields rely on probabilistic thinking and expected value calculations. He shares strategies for managing risk across multiple cases, similar to a poker player handling various hands, and highlights the differing risk levels faced by lawyers and their clients.
In this episode, you will hear:
- Insights from Ben Gideon on risk assessment in trial law
- Exploration of trial lawyers’ risk-averse tendencies and the impact of cognitive biases
- Importance of data-driven approaches and probabilistic thinking in legal decision-making
- Balancing client emotions and cognitive biases during negotiations and mediations
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Supporting Resources:
Guest Ben Gideon of Gideon Asen
Email: bgideon@gideonasenlaw.com
Website: https://www.gideonasen.com/our-team/benjamin-gideon/
Podcast: https://www.elawvate.fm/
Books referenced in the episode:
On Edge: The Are of Risking Everything by Nate Silver
Thinking, Fast and Slow by Daniel Kahneman
Episode Transcript:
Elizabeth Larrick (00:02.592)
Want to learn what cognitive biases you have as a trial lawyer that could be holding you back? Want to learn to assess risk better? Well, buckle up because our guest, Ben Gideon, is here to share his approach
in this episode. Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a wonderful guest here today. Ben Gideon is joining us all the way from Maine. Good morning. Hello, Ben. Morning, Elizabeth. I’m thrilled that you invited me to episode 140 or 141. That’s incredibly impressive. well, thank you so much. And I appreciate letting me come on your podcast. I recently got to guess.
on Elevate and it was wonderful and I’m glad to do that. And I’m excited that my audience gets to have you here today and talk about risk. So you have an amazing career, thoughtful, well put together, running your own office, many, many successful trials. So I know the folks listening are excited to hear your take on risk and how we can do better as trial lawyers at assessing risk. So let’s jump right in. Okay. Like
I know, I already know. You think that most trial lawyers say, you know what, I can handle the risk, I can do the big talk and the walk, but in fact, we’re really risk-verse as trial lawyers. So tell me a little bit about that. Yeah. So I started thinking a lot about the concept of risk after a recent trial that I’d lost. There’s nothing like having a devastating defeat to start to frame things for you and force you to think critically about issues that maybe you hadn’t thought as much about before.
Elizabeth Larrick (02:23.316)
And of course the idea of risk is elevated in center of mind when you’ve just lost a lot of money and turned down a big offer and received a defense verdict. So I started thinking about my own decision-making, about the decision-making that the client had to go through to make that choice, to roll the dice with the jury. And then thinking back on my career and also about other great trial lawyers that I’ve come to know who have had a lot of great
verdicts and just thinking about what, where the right balance is between taking risks for yourself as the trial lawyer, for your client, for your law firm. So what you said about that, it was one of the first observations I came to, which is in my career of doing this, which is now 25 years or so. One thing that strikes me is that as trial lawyers, we tend to be too risk averse that we
settle too many cases that we probably should be trying, that we take too many low dollar offers, that we don’t put it on the line as often as we should. And when you look at the lawyers that have had repeated high level success with the significant verdicts that we all hear about that are reported across the country, first of all, one of the observations that I think is
obvious to most people is that it’s the same lawyers that get the verdicts time and again. And you’d think, well, if everybody was doing the same thing over time, that would spread out and everybody would have, you know, their share of those verdicts, but they don’t. And one of the reasons for that is that, I mean, it seems quite obvious, but one reason is that the lawyers who get those verdicts are willing to take risks that other people don’t take. And they take those risks repeatedly.
over time and that has a kind of self-reinforcing mechanism over a career in terms of what that does to their mindset that allows them to take on that kind of risk. Whereas if you get into the reverse spiral of not taking those risks, then your formative experiences are all teaching you that you shouldn’t take the risk and you should take a lower offer and walk away. So then the question I came to about it is, what is it about us that
Elizabeth Larrick (04:47.535)
that causes us not to take really intelligent risks or risks that if you were to do the just pure rational data-based analysis, that the right decision would be to take the risk. The right decision for yourself, many cases also for your client would be to take the risk, but you still don’t do it. Why is that? And I started looking and reading up on some of the cognitive research that
kind of underlies a lot of the modern thinking about it. I don’t know how much you want me to get into all this. When it starts to get into No, no, I think it’s fascinating. Well, let me just say real quickly, because I think when a lot of times when people are risk averse as trial lawyers, we take kind of a riskier path. We do contingency fees, we get to hold onto the expenses. And one of the thoughts that I think hams up for people when you hear-
so and so just got 21 million. so and so just got eight for me. that guy or that gal, she just got the multimillion. It’s, that’s just luck. They’re just so lucky. They get that. So that’s one of those thoughts I think that sometimes gets reinforced, which then goes back into our mindset or the brain science behind the paths that we make in our brain. And then trying to make a new path of taking risk is challenging. So talk a little through the brain science.
Yeah. So again, after that, that recent loss, I was feeling terrible about it and trying to think through how we, how I came to that decision and whether that was a smart decision or a dumb decision. Of course, the decision to take a risk always looks dumb when you’ve lost. So, but I was trying to go back in real time and decide if I had to do it again, would I do the same thing or would I do something different? Because what lesson am going to learn for the next case? So.
My partner actually had just finished a book by an author named Nate Silver, who somebody, many of your listeners may know from the FiveThirtyEight website. He did a lot of political statistical analysis and prognostications. So this book by Nate Silver, who wrote a book about risk, again, I highly recommend it. And what he does in the book is he compares
Elizabeth Larrick (07:08.294)
people that are in professions where they’re highly skilled at analyzing and making decisions on risks, such as venture capitalists, such as poker players, versus people in the mainstream, doctors, lawyers, other people who aren’t as accustomed to making risk-based decisions. And what people in those industries do is they employ what they call probabilistic thinking, which is essentially figuring out what the expected value of a decision is.
and then making the one that’s optimal. So in poker, if you have a particular hand and you can see the cards on the table and you’re experienced poker player, you can assess what the odds of winning that hand are based on what the likelihood of you having the best hand would be, you know, just based on statistical odds and really good poker players do that. And the expected value is their odds of winning multiplied by what’s in the pot. So.
Now, if there’s $10 in the pot and you have 50 % odds of winning, the expected value is $5, right? So as a trial lawyer, you can do the same thing. If you know what the expected verdict value is and the likelihood of winning, can figure out, well, this case is the expected value is $10 million and I have a 50 % chance of winning. So the EV or the expected value for this case is $5 million. If they offer you $1 million, that’s
really not a great offer. I’m assuming all of those, that data is correct, right? And one of the challenges of doing what we do is getting data that you can rely on. One way to do that is focus groups, which is what you do and helping people to have at least a more quantitative understanding of risk for their case, which, you know, in the old days, you just made decisions based on your own quote unquote intuition or experience.
or what your most recent experience might have been. So you tried a case and you did really well. That case was a rear end collision. Now you have another rear end collision. So you may assume, well, I’m going to do the same in this case. But of course, every case is very different and we all know that, right? Even one little difference can change an entire case. But assuming you could figure out, and it’s a big assumption, what the expected value of the case is, then you can make smart decisions for yourself and your clients in each case.
Elizabeth Larrick (09:30.631)
subtle cases where they’re offering more than what the expected value would be, and going to trial in cases where they offer less. It’s my hypothesis that trial lawyers that you hear about getting the big verdicts routinely, even though they haven’t overtly stated that that’s their process, having gotten to know many of those lawyers, I believe that’s essentially what they’re doing. They’re making
decisions that are much more closely aligned to actual expected value, which if you do that, and this is part of the Nate Silver book, if you do that over a long term, you’re going to be far better off, right? It’s like in any individual case, you might get it wrong because if you a 50 % chance of winning, it’s 10 million and you turn down 3 million.
and you lose, obviously in that one case, you’re going to be worse off. You would have been better off taking the three. But if you have 10 of those cases and you always make the decision based on expected value over the course of your career, you’re going to be far better off making the analytically correct decision about risk. and I think also too, but what goes into that is when you’re thinking about these folks that are going over and over again.
and having expected value and using big data to understand all of those things. You still have that person, that brain that has accumulated the risks of going to trial like this on these kinds of numbers, these kinds of cases, that person, that brain is way more accustomed to risk than the lawyer who is just stepping into the arena and they’re taking their first million dollar or two million, three million dollars.
you know, so I do think it’s a combination of that getting used to that risk, you know, stepping into that place, but then also again, like you’re saying, have some of these expected value and be able to compare and have that a little bit of that data to make the decision. Right. Absolutely. It’s self reinforcing in that if you, so for one, one thing is if you’re a lawyer who only gets an occasional, you know, seven or eight figure case, maybe once a
Elizabeth Larrick (11:43.567)
year, or even once a decade, you don’t have a diversity of those cases to balance out that risk. So you’re not in the same position as a poker player playing a thousand hands. You’re actually much more like the client who only has one case. And that’s another point I wanted to cover, which is that the risk to the lawyer is actually quite different than the risk to the client. So the lawyers who are trying
repeatedly trying seven and eight figure cases to verdicts, they have an entire docket of those cases. So they’re similar to the poker player who’s playing a thousand hands of Texas Hold’em, right? Their expected value is going to even out over the long term and it’s going to trend toward the mean of what the actual value is. Whereas if you only have one case as the lawyer, you’re putting all of your eggs into that basket and
you know, if it’s a 50-50 chance of 5 million or zero, you may not be in a position with your practice to be able to diversify the risk of that loss across other cases, right? And the client can never do that because our clients always only have one case. I mean, for the most part. Right. We’ve multiple times, but for the most part, they only have one case. And so then you’re in the position of advising your client about
the risks where for you as the trial lawyer, if you are fortunate enough to have a lot of high value cases, you can afford and you probably should rationally take the risk to insist on getting expected value in your case. Whereas for your client, each marginal dollar is less valuable because the risk is so much greater for them once they get over whatever that threshold number is that they need to be secure and protected.
from the risk of loss, right? And so that’s just a really difficult dilemma. And I think that part of dealing with that issue is just recognizing it to begin with, that you as a lawyer do have a different tolerance, potentially a different tolerance for risk than the client is. Also the lawyers, mean, frankly, different lawyers, as we’ve discussed, do also have different tolerances for risk. And if you have that case that’s worth $50 million,
Elizabeth Larrick (14:05.867)
but you only have one of those in your practice, can you realistically take that risk, the appropriate risk that you should be taking? The answer is probably not, and you probably can’t afford to invest in the case as you should, which is also a risk, which is why a lot of those cases do get referred to the, you know, the small number of lawyers who routinely handle and try those kinds of cases. So there’s a certain logic to it. It’s pretty interesting stuff to, you know,
drilled down on it. It definitely will. And it is one of those things where I think people, whether you say that it is risk assessment or whether you say it is, they, this is in their wheelhouse. They have the, the war chest to invest in something that I don’t. Right. I think it’s still a matter of risk assessment. Like can I take this? You know, do I have, you know, the, it takes it to go invest the right way, but also take the risk all the way knowing
you know, I can go in because the value of the case. think most people say, well, that person’s done this before. And also they’ve got the war chest to invest in ways that I may not even know about and don’t have time to teach myself. Whereas I do think there are people out there who have that one and they say, you know what, I got this. And they do their own investment, meaning invest in themselves and then invest in learning. And then basically find a way to build the case.
with help or alone or whatever it may be and then really do try to take it all the way. But I think those are pretty rare. Those are the most amazing stories. And then those are the people that end up generally moving into that rarefied crowd and doing it repeatedly. I you have to start somewhere. That’s right. Yeah, exactly. I think no one’s going to hand you a 58 figure cases when you start your career. So you have to build that up. Yeah. Well, you know, take some risks to get over that hurdle. But
Right. And then like you said, I think there are people who do, and then if you have a bad outcome, even if you have one or two, but like they just, they notch down their risk level, right. And then they do end up being referrals and, working on things that they feel comfortable with. This is what I like the data so much. And I like the focus group practice so much because I think it’s a way for us to rationally think about and manage risk. I mean, I’m sure one of the
Elizabeth Larrick (16:28.258)
things that you talk about a lot in your podcast is the way focus groups are used to help refine your case and to make it stronger and to make it better for trial present, get the right case frames, the right themes, troubleshoot problems, overcome obstacles on all of those things, which are incredibly important uses of focus groups. But there’s also another use of a focus group, which is to in combination, I think with some quantitative data, more on a big data level, but.
But it starts with the qualitative data on the focus group is that you start to get more of an objective sense for the actual case value, win loss rate and risks that are independent from your own kind of subjective biases. And I think it’s really important to do that because we all bring a bias, our own bias. And of course, when we’re very deep into the weeds of cases and feel connected with our clients and the cause, it can be very hard for us to see the difficult
challenges in the case or to do it the way an ordinary juror might look at it. So as part of this kind of risk analysis, I was reading up on the literature, which I’m sure a lot of listeners are familiar with, the Kahneman-Tversky model, which is exploring why people often make irrational decisions based on cognitive bias. And when you read that in the context of being a trial lawyer, a lot of it really rings true and also…
you can see what the defense and insurance companies are doing to us routinely. So just to highlight a couple, some of the things they found when they did their research and how people make decisions is that people tend to perceive the risk of loss with greater value than the equivalent amount of gain, actually almost two to one, because you’re so worried about risk of losing that that elevates
in importance in your mind. losing $100 is much more impactful to you than the possibility of gaining an equivalent $100, even though rationally it should be the same, right? Right, right. That’s one of the things they found. Another one was that people will pay extra for certainty because people don’t like uncertainty. So going back to the expected value, if you have a certain 3 million,
Elizabeth Larrick (18:49.24)
but the expected value of your case is 5 million because 50 % of 10, people perceive the three as being much more, as more than three relative to the five because it’s certain, whereas the five is contingent. But that again is irrational because the expected value of 50 % of 10 million at five has a substantially higher value than 3 million, right? But still people perceive that differently. And then there’s the final thing, Nate.
they found, which is that people value things that they own much more than things that they don’t yet own. So it costs more to force somebody to give something up than what someone is willing to pay to acquire the same thing if they never owned it. And when you think about those different cognitive biases, think about how negotiations happen and mediations in a plaintiff’s case, right? They want to put enough money out there that
they are triggering your client and the lawyers for those cognitive biases to kick in. When they put the three million out there on the table, it’s very different than you sitting down with your client and saying, would you take three million? Well, I don’t think so because the expected value in this case is five million. But now it’s on the table. In a sense, you have it, you own it, it’s yours. And now in order to try your case, you have to give that up. So that endowment effect,
of people perceiving the value of something they own greater than something they don’t yet own, or the value of certainty over uncertainty, or the value of the risk of loss versus the equivalent amount of gain. All of those biases factor in. And I don’t know if insurance companies have studied this in terms of human cognitive decision-making as to why they negotiate the way they do. But I think some do, some don’t.
It doesn’t matter. They’re employing these techniques and they’re very effective because we all know exactly how that works, right? Your client says, no, no, no, never, never, never. But as soon as that money is on the table, that whole discussion changes. I’ve always thought about that as well. Our clients sort of being disingenuous, you know, maybe they they’re always saying no, no, no, no, but they actually don’t really mean it. But actually, that’s not really the case. It’s that that cognitive effect has not yet occurred.
Elizabeth Larrick (21:11.734)
which is a real, very real thing. And when it happens, it has an actual impact. Probably at some deep level of brain chemistry that I don’t understand. If you recognize that that’s what’s happening, even if it’s still going to happen and still has a powerful impact, I think it’s useful both as the lawyer and in advising your client to think about those things and why you’re doing what you’re doing. And then going back to focus groups, you can, to some extent, I think, counterbalance those forces with actual data.
because now you’re saying, well, you know, okay, that’s on the table. But we know from, you know, the 10 focus groups we did that the mean verdict about was this, and you had a 90 % win rate in this case. And so, yeah, that number kind of might sound good, but actually that’s offensively low for what this case is actually worth. Sure. At least it’s something to talk to your client about to counterbalance that. Sure. And I think that that definitely
Absolutely. As far as being able to have some kind of risk assessment tool besides yourself. I think when it’s just you assessing it and telling your client, like it’s very difficult for them to counterbalance it versus if you have some focus groups or you know, if you have the ability to do that big data study, then it significantly helps them balance things out in their minds. Especially if you get there beforehand and you know, before you get to that mediation, that pressure point that they’re going to feel and it’s
harder for them, I think in the long run, because if you, again, like you’ve pointed out, and you always have to remember that this is their one thing, their one thing. So the risk is going to be magnified versus for us who do it often frequently. And I think we tend to forget about that perception that they’re going to have versus us, even if we’re not one of the ones that always goes to trial, we still have that, this is just how it works.
you know, okay, that’s okay. That’s going to work. You know, here we go, but just move along because we just don’t want to risk anything. But when you have the focus groups there, it’s definitely harder for you to say, Oh, we should just go against what they said and just settle now because you know a little bit more in your brain about the risk and what, what they’re saying. And the other thing about the focus groups is they find risk you completely missed. I mean, that’s why I enjoy when folks, even if you just do one issue spotting, like
Elizabeth Larrick (23:35.449)
it’s going to find risks you may not have known was there. And then you can assess it or you can say, this is not something that we could probably overcome given the evidence we have and what I know and what I can talk about or do another focus group to assess more risk. Yeah, I agree. And we started this new law firm about four years ago and we just revisited our sort of core values as a firm. And one of the core values we came up with is that we are going to make decisions based on science.
and data, not fear or ego. So that’s, that is one of our firm core values now. And we’re very committed to in every case that’s moving forward to trial. Now we do multiple focus groups because we like the qualitative response from actual people. And then we, we do a big data study, at least one, and we’re committed to recommending settlement. If the case values come in above what the expected value is in the data study and to recommend trying cases of
the expected value is less. But that’s when we have the conversation with the client about that they only get one case. And so there needs to be some adjustment there for that extra risk. That’s not just a case specific risk, but is the risk of having all of your eggs in one basket. It would be like investing in the stock market by only buying one stock, right? Which nobody would ever do. So a differential is going to be different based on their own life circumstances and
tolerance for risk, but at least we can have that discussion with them. But we don’t recommend settling for our benefit unless it’s expected value or above. At that point, it becomes the client’s choice. If it’s less than expected value, then we talk about how much less would be reasonable to give them the discount there for that extra risk. it’s just a really great way to have an intelligent conversation with your client about this subject and to take your own ego out of it.
to take these cognitive biases out, to take fear out of it and just try to make the best decisions we can based on the information available to us. Sure. Well, let me throw a scenario at you because this has happened multiple times with folks I know that are listening. And that is, let’s say you’ve assessed the risk. You’ve done maybe, maybe one or two focus groups. Maybe you’ve got 20 trials, 30 trials under your belt. You’ve got some, you know, multimillion dollar verdicts.
Elizabeth Larrick (26:00.981)
And the risk assessment comes back on a case and lo and behold, they get a settlement offer that’s more than that. The client says, no way, I want to risk it all. So how do you, in that scenario, have you have basically a completely risk averse client? How do you navigate that? I mean, there are clients who truly want their day in court and they want the catharsis of having justice done. And personally, I believe that that has great value and
I would be thrilled to have clients that wanted, that pushed us to try cases that, you know, where we could take a chance that even went beyond what the risks says. However, I think my experience and probably yours too, that’s pretty rare. Our clients don’t tend to be highly risk averse. I find the opposite is much more true that most clients are very worried about going to court. They don’t want to.
have to be in a courtroom and testify. For our clients, everybody who does plaintiff’s work for the most part, our clients are not. They don’t have resources that allow them to take risks at a high level. And they probably, for the most part, should not be doing so. I find it’s much more the opposite that when you start to get multiple seven figures on the table, clients are very wary to put that at risk to go to court.
And I totally agree that most people fall into the category of being high. You know, they don’t want to do it, but most people don’t have multi million dollar cases. Most of them have, you know, smaller cases. And what I find when you actually kind of dig into this person who has this absolutely not, there’s absolutely no amount of money that can ever cause nothing’s ever going to fix this. You know, typically there’s something else emotionally that is going on. And that’s where
you know, yes, we can have all this intelligent conversation, but at the end of the day, I think we have to really think about the emotional things that are going on because there are times where we may get a verdict one way or the other and we talk to the jury and what has happened is something that’s emotional and subconscious and like, you know, all they can tell us is, I didn’t like your tie been in your thinking. Okay. Well, that really probably wasn’t the thing that made you decide.
Elizabeth Larrick (28:22.493)
Yeah. No, I mean, I just had a client in the office two days ago and this was a case we did a data study on. And what I found is actually most of the time, the data studies come back with numbers that are higher than what I would have expected. Back in the days before we did data, my intuition would have valued them below what actually juries are valuing them. So that’s been a nice revelation for me.
I think that’s part of the culture and climate we’re in right now with a lot of the nuclear verdicts and that people are willing to see value in other humanity. And also just there’s a lot of anger out there and people are expressing that in verdicts. But in this particular case, the results came back considerably worse than we would have expected. And there’s some atmospheric reasons why that’s probably the case. So we settled with one of two defendants for what was what I think beyond expected value for the entire case.
And our client, just like what you said, she is not, she was not particularly thrilled with the settlement, but for the party that settled, they also agreed to do something, a non-economic thing beyond the settlement. And this case involved a death of a child and they’re willing to do something to recognize that probably didn’t cost a lot of money, but it was very meaningful to our client and made her feel like they took the claim seriously.
that they were taking responsibility for it. so, yeah, there are definitely cases where there are things beyond money that are very meaningful, whether it’s a day in court, just having that jury say, you know, the other side was wrong and you didn’t do anything wrong. Well, and that’s still pretty rare that most, but you anything will non-economic would come through. But I just think, you know, most of the time when you have somebody who has something else emotionally that they want to be satisfied.
for what it be to be, it is to be heard. Maybe it is to be, you know, you know, acknowledged in the sense of, and many of the times it never happens, right? Even if you have a jury of like that doesn’t give an acknowledgement by the defendant, but that’s just kind of one of those things where we are on the other side, right? Of where we’re trying to convince somebody else of the risk knowing we’ve done, you know, the research and, it is pretty rare that those happen, but they’re out there. I mean, I, clients are
Elizabeth Larrick (30:44.177)
They’re complex humans, just like everyone is, and people are have, they’re going to be different motives and lots of layers, probably in every case. But what I’m trying to focus on in terms of thinking about the risk here is more that I don’t want to be making decisions based on my own ego or fear. If I can take that out of the equation, at least that’s one big factor to remove. Now my client’s going to have fear. My client has an ego. My client has many desires and are not necessarily driven by
know, crunching numbers and expected value of cases based on focus groups and big data. I get that, but I don’t want to be making decisions on that because I’m the professional here, right? And I should be trying to make smart decisions, not take dumb risks because it would serve my ego to get a verdict, but on the flip side, not caving into these cognitive biases that might be impacting me because, I’m afraid of the risk of loss or I’m valuing the certainty of
dollars in my pocket over the greater value of going forward, which I shouldn’t be doing those things as the professional in the relationship. So the reality is, as you know from doing all these focus groups is, first of all, none of these are precise science. It’s not in poker, you can look at a hand and say, if I have this hand, I have the third best hand you can have, and my odds of winning are 72.5%.
You can never get to that. don’t think we’re ever going to get to that in our business. There’s not enough human nature and jury decision making is too unpredictable to be subscribed to that kind of analysis. But the reality is when you do big data and combine that with a qualitative focus group where I think you can get pretty close, I think you can get within a range that gives you a pretty good sense. You know, are you at a 70 % win rate or are you at a 30 % win rate?
You you definitely can get a lot closer than you could with your gut without it. So, yeah. So obviously, Ben, I think I can hear that you really like big data. I think I can hear that. And we talked about some of wrong ways to assess risk, which would be ego or fear. So what’s another way that maybe would be the wrong way to assess risk? Well, I think one way is to is to use a small sample size to
Elizabeth Larrick (33:05.917)
have large scale extrapolation. So if you do one focus group and you had a great result, that doesn’t mean you’re going to win your trial. And if you had a bad result, it doesn’t mean you’re going to lose your trial because we all know as long as it’s a small sample size, it’s highly influenced by individual people or just like you said, maybe what you wore in your tie that day or some other factor. Sure. Well, and I think if you’re just going to do one focus group, you shouldn’t be targeting, is it a win or a loss? You should be targeting.
what are they saying, how are they saying it, you know, that kind of stuff. you know, totally agree. The one shot doesn’t get… Yeah. And also, I mean, I think you can always stack your presentations to dictate your outcome in your favor. So, I mean, if you’re not honestly confronting the real difficult arguments that the other side has, whether it’s in focus groups or doing data studies, you might get very favorable results and you might feel good about that. But that it would be a big mistake to use that to
make decisions or to advise your client because you’re not really, you know, honestly presenting the case. And I think having that discipline to try to honestly confront the difficult problems in your case, even if you didn’t use the data for predictive quality or anything is worth it alone because that exercise is going to make you a much better lawyer and make you much better prepared for trial because
It’s not fun, but you’re dealing with the difficult issues before you get in the courtroom and you figuring out solutions to them. So, right. And you definitely don’t want to be doing that in the courtroom. But I think another way that we often and frequent do this, and it’s not just that we just as trial lawyers, but we go down the hall or we call somebody up when we ask them to give us their risk assessment and then really rely on our neighbors or our, you know, our colleagues assessment of things we do. And we also, I think,
And this is one of the Kahneman and Tversky points as they call it availability bias. But basically you tend to put greater emphasis on things that are easily accessible or right in your face at the moment. So if there was a big verdict in a similar kind of case, you would tend to say, well, I’m likely to get a big verdict in this case, even though maybe that same kind of case, was nine bad verdicts before that, that you didn’t hear about.
Elizabeth Larrick (35:26.063)
It’s the concept that, you know, when people are at the beach, they’re worried about shark attacks, even though that happens, at least in Maine, that’s happened once in the last century. But it did happen a couple of years ago and everybody’s afraid of shark attacks now just because of the recency and, kind of that being front and center in someone’s mind, which I think is why people that start getting verdicts to that becomes their recent experience. Well, I just had a great verdict. So now the next case, what are you thinking about? I’m thinking about my last case and
that gives you that extra confidence that things are going to go well the next time. And you know, the reality is we’re also in somewhat of a confidence game. So there’s a value in just having the confidence, which, you know, when you do the focus group and you do your data and you’re if you’re doing it with robust process and thinking critically about the difficult issues and the other side and you’re still winning and feeling good about it. Yeah, you get some extra confidence going in the courtroom as you feel like you’ve got the win in your sales and
that itself, I think has great value. Absolutely. And I do think you can gain some certainty out of your case, you know, running them and figuring out the case frames and the sequencing of evidence, which is again, brain science, right? Primacy, recency, you know, all the things that we can take advantage of because we get to go first. And again, knowing that things are working at the focus groups, that definitely gives you that confidence and certainty. So, okay. So what’s a key takeaway that we need to give folks before we end our episode?
What I’d like to see people do is just step back and reflect on the idea of risk and think about where you are in that, in the process of arbitrating that both internally in your own mind and trying to confront your own biases and egos and fears and also the perspective of your client and where they’re coming to you from this. I think if you can step back and even just
thoughtfully consider those things, you’re going to make better decisions for yourself and for your client. And whether you decide the way to do that is with more focus groups, more data, or just thinking more critically about your case and not falling prey to those biases that may affect us otherwise if we’re not aware of them. I think that would have a lot of value for folks. I know it has for me. Absolutely. Absolutely.
Elizabeth Larrick (37:43.165)
Just to give people a little bit more of a reference point, Thinking Fast and Slow is probably the best book you could recommend as far as learning Daniel Kahneman and their work they’ve done. Yes. Yeah, I would start there. And then Nate Silver, his book is Thinking in Bets. No. It’s On the Edge. On the Edge. He’s got a couple of books, but that’s the one I was referring to. Okay. Okay. Awesome. Well,
Ben, thank you so much for joining us. If you guys want to talk to Ben more, and I know he loves to talk folks about big data. He actually wrote the preface for jury ball that just came out. So, you know, if you have questions about big data, please, we’re going to have Ben’s contact information, the show notes, along with the links to those books. If you’re interested in that, Ben, thank you so much for joining us. You have given us lots of wonderful gems here about assessing risk and cognitive bias and things to be aware of. So thank you so much.
Thanks so much for having me. I appreciate the opportunity and thanks for coming on my podcast, Elizabeth. It’s great. Of course, of course, of course. Thank you so much for tuning into this episode with Ben Gideon. You can find his contact information in the show notes along with the two books that were recommended during our episode. And if you want to learn more, you can join the trial lawyer prep newsletter. Thank you.