Counsel’s predictions

Just the other day, alerted by SCOTUSBlog I posted Jones v. Williams as a case to watch at SCOTUS.  The issue once again:

Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case.

Now courtesy of the New York Times here is an article that defense counsel, trial counsel, and SJA’s may want to read.  It’s a cautionary tale, or perhaps just entertaining.

Now here is a piece courtesy of Wall Street Journal:

According to a new paper published in Psychology, Public Policy, and Law, lawyers aren’t very good at predicting the outcome of their own cases. Why? Because they’re often biased in favor of their own chances. Click here for a blog post on the study from the Chronicle of Higher Education.

Here’s a link to Goodman-Delahunty, Granhag, Hartwig, and Loftus, Insightful or Wishful Thinking:  Lawyers’ Ability to Predict Case Outcomes, 16 Psych., Pub. Policy & Law, 133 (2010).

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of
litigation, lawyers constantly make strategic decisions and/or advise their clients on the
basis of their perceptions and predictions of case outcomes. The study investigated the
realism in predictions by a sample of attorneys across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience.  Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers
were asked to generate reasons why they might not achieve their stated goals. This
manipulation did not improve calibration.

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