by Andrew Flake
Over the past few weeks, I’ve been giving up a large measure of control, embracing the process of change in a fluid, highly-unpredictable, and high-stakes environment: Yes, I’ve been teaching my teenager to drive. And one of the first scenarios we went through was how to deal with “blind spots,” those points in the road where we may not know what is coming,
Generally, those blind spots are physical features of the road or terrain — a sharp turn, steep hill, or overgrown vegetation — but in litigation, the advocate also encounters blind spots. Cross-examination of a newly-located witness, a change in the law, an unexpected ruling. All are points in a case when, as when driving, we’re called upon to slow down, take stock, or adjust in some ways.
Notably, an advocate’s blind spot can also be self-created, when she becomes too wedded to a particular view or position.
We know from ample and interesting research in psychology a lot about why and how this happens, whether we call it confirmation bias, motivated reasoning, or something else. The tendency becomes looking for, and embracing, information that supports the favored view, and minimizing, explaining away, or ignoring information that does not.
A lot has been written about recognizing and controlling for this tendency. I’m a big fan of finding and asking the right questions, and I want to suggest here how one such question can assist: “What if I’m wrong?”
In one of more famous letters, written in response to an editorial in the New York Tribune criticizing his administration, President Lincoln captured this approach with admirable humility, writing that “I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.”
“What if I’m wrong?” is a keystone question, an anchor to healthy skepticism that necessarily surfaces other important questions: What level of certainty do I have? Could the factfinder determine otherwise? What else might be true? If this position is not right, how does it change the claims and defenses in the case?
Remember: effective preparation for trial or arbitration requires, as much or more than understanding the client’s position, understanding what the other side contends. It will focus your case investigation, evaluation, and assessment. If there’s a “win-win” result to be had in settlement, as a mediator, I can confidently say also you’ll be much better positioned as a negotiator to find it.
And where trial or evidentiary hearing is necessary, if you’ve periodically played the role of devil’s advocate, and challenged your own case position from time to time, you will tell a stronger and more credible trial story.