Lawyers often struggle to recognize and learn from their mistakes. Associate Dean Catherine Gage O’Grady has made the argument in her article, A Behavioral Approach to Lawyer Mistake and Apology, that this is a result of cognitive biases, and offered insight about how law firms might respond to facilitate learning, professional growth, and stronger ethics. In his Response Article, Lawyers, Impression Management and the Fear of Failure, Donald C. Langevoort not only supports O’Grady’s position, but also presents additional reasons to pay close attention to the insight provided by Associate Dean O’Grady.
At the outset of his response article, Langevoort suggests that researchers who attempt to predict lawyers’ behavior face challenges when relying on cognitive or social psychology understandings. Specifically, he points out that the means by which information is gathered and used by psychological experimentation is inherently problematic. Langevoort recommends that researchers should contemplate taking additional and, in his view, necessary steps before offering predictions and suggestions about the behavior of lawyers. Although he strongly urges researchers to follow his recommendations, Langevoort acknowledges that doing so may be difficult because lawyers often fail to cooperate with researchers.
Langevoort explains that, through his own research, he has attempted to identify certain cognitive biases, which lawyers are prone to, and then examines the impact that these biases have in economic settings with equivalent institutional incentives. One aspect of Associate Dean O’Grady’s Article that Langevoort draws attention to is the lack of emphasis placed on competition. Langevoort offers a supplementary perception to this: overconfidence may provide a buffer against fear of loss, the phenonemon known as loss aversion. Additionally, Langevoort opines that hyper-motivation is a strong part of how lawyers react to, and deflect from, cues linked to potential mistakes. He suggests that the traits lawyers possess are amplified by hyper-motivation and, in turn, increases the likelihood that a person will be more susceptible to biases. Thus, Langevoort argues that stronger intervention is necessary in order to offset the amplification of these traits.
Although he agrees with Associate Dean O’Grady’s point that law firm leadership needs to be aware of the relevant cognitive phenomena, Langevoort sasys he is indifferent to Associate Dean O’Grady’s assertion that it is necessary to take the role of acknowledgement and apology more seriously. Specifically, he identifies what may make it difficult for firms to transform into firms that celebrate confessing to mistakes. A final point offered by Langevoort suggests that Associate Dean O’Grady’s behavioral survey omitted important information on gender diversity. He suspects that the inevitable feminization of the professional workplace will have noticeable future effects on the issues raised in his commentary and Associate Dean O’Grady’s Article.
Langevoort’s Response Article will appear in Volume 51, Issue 1 of the New England Law Review.
Contributing Editor: Daniel R. Williams