Consider these words through the lens of your case assessment leading up to trial: "People tend to be optimistic creatures, looking forward to a long life, imagining it full of pleasures and success, and savoring the achievements that are yet to come. Numerous writers have noted this to be a useful affair in that it helps people deal with personal setbacks and provides people with resolve to continue pursuing their dreams. When facing the moment of truth, however, people often abandon their rosy outlook. The realization that time has run out, that one's perception was skewed, that others may witness one's incompetence or blindness, or that disappointment may be right around the corner, all conspire to prompt awareness that the future may not be as bright as initially hoped." That's the rather literary coda to an otherwise scientific research article (Sweeny & Krizan, 2013) that I recently came across. Dubbed the "sobering-up" effect, the psychological bias at the heart of the study refers to the tendency for people to revise their assessments in the direction of greater pessimism as the day of decision approaches. Reviewed in Psyblogthe article documents that the tendency is robust and common across a variety of settings: Projects that begin with positivity and optimism are increasingly taken over by cynicism or even despair. 

We have all known some trial teams that drifted in that direction, and the sobering-up effect might account in part for the common scenario of cases settling on the courthouse steps. The odds are the same as they've always been, but as trial looms, our focus can turn more toward the negative. Now the label of a "sobering-up effect" might not be the best name: especially in a litigation context, "sobering up" sounds like a good thing. But it's important to remember that based on this cognitive bias, assessments are not becoming more accurate, they're just becoming more pessimistic. That is a psychological tendency that may cause litigators and their clients to artificially discount their chances for success at precisely the moment when they most need a clear-eyed and realistic case assessment, including both the pitfalls and the promise. In this post, I'll take a look at the bias, its causes, and its implications in litigation. 

Research on the 'Sobering Up' Effect

In the research article, Kate  Sweeny and Zlatan Krizan of University of California Riverside and Iowa State, respectively, conducted what is called a "meta-analysis," combining the data and the results of many studies. Their results show that, across a wide variety of settings, there is a strong and consistent tendency for people to become more negative about their chances for success as they get closer to the time when they will find out how they did. If we've taken a medical test or a school examination, we will be more optimistic about the results when we won't get those results for four weeks. If we expect to receive those results in the next few minutes, though, we are more pessimistic.The analysts who forecast corporate earnings tend to become more pessimistic the closer they are to the release of the actual earnings. The same is true for driving tests, judgments of starting salaries and a number of other specific predictions. While I don't believe the effect has been tested in a litigation context, there is every reason to expect the bias to apply to case assessments as well. Indeed, the more important the outcome is considered to be, the more likely it is that this sobering-up effect will occur. And we don't grow out of it either: Sobering up occurs at a greater rate when the expected outcome is more familiar. In addition, when more time passes between our early assessments and later ones, the tendency to become more pessimistic over time is greater. Those are all factors which occur in litigation: important outcomes, with a fair amount of prior experience, and a long lag-time between initial and ultimate assessments. 

Analysis: Why Do We Sober Up? 

In their review of the studies to date, Sweeny and Krizan identify four reasons for the tendency to ratchet down our optimism as the decision date approaches.

  • Resetting Expectations. As we get closer to anticipated feedback, we start to project how we will feel in the event of a bad outcome. Knowing that we will feel better if we exceed expectations, we are motived to lower those expectations.  
  • Loss of Control. Well before the event, many things are in one's own control, or believed to be so. But as you get closer to the outcome, it is shifting toward being in someone else's hands. In that context, increasing pessimism signals a change of the guard regarding who is in control.  
  • Reduced Abstraction. We tend to be abstract about the distant future, but more concrete about the immediate. As the authors explain, "predictions of more distant events are often optimistic because they are based on goals and aspirations, whereas predictions of more proximal events are less optimistic because they are based on low-level details and feasibility considerations."   
  • Increased Accountability. As we move toward a decision point, we worry about a missed assessment. The missed assessment with the largest consequence is a false positive, so we reset our expectations in order to not look foolish in a worse-case scenario. 

Implication: One More Reason to Distrust an Ungrounded Case Assessment

Fortunes are won and lost in the U.S. civil trial system. Sometimes, that is the work of a jury or judge, but more often, it is the result of a case assessment that occurs prior to trial and leads to a settlement. In making that assessment, attorneys inevitably rely on their own continuing sense of how the case is going. That is part of the job, but at the same time, careful litigators should be sensitive to the inherent subjectivity and bias that underlies that assessment. The four reasons for the sobering-up effect discussed above are not always conscious processes, but can instead be just a part of our background-motivated reasoning that colors our perceptions as we look at evidence, witnesses, and rulings from the bench. 

There can be some good reasons to 'sober up' on case assessment. If the litigator's role as an advocate has encouraged an unreasonably rosy case assessment, then it can help to step back from that as trial approaches. But it can be dangerous for case assessment to be driven purely by internal calculations. If case assessment depends too much on how we feel about the case in any given moment, then there is too great a chance for biases to artificially affect our judgment. As the authors note, this is a problem that occurs when people, "look to their feelings as a source of information about their likelihood of success or failure." When that occurs, a decline in assessed value can occur based on nothing other than the proximity of an end point combined with anxiety.  In other words, the case isn't becoming worse, you're just becoming more worried about it. 

The solution is to acknowledge the bias: If you find yourself becoming pessimistic as trial approaches, ask yourself, "Are circumstances genuinely changing or am I just falling victim to the sobering-up effect?" It also helps to check your own attitudes against external feedback: a mock trial if the case warrants it, or other more informal sounding boards if it doesn't.