Why do lawyers tend to be very conservative in making suggestive predictions?

Question

Lawyers tend to be very conservative.

For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind).

This can be inefficient because clients often need to rely on imperfect expert assessments to make judgments.

What make lawyers so conservative? The "obvious" answer is that they do not want be sued. However, the same should apply to consultants, but consultants are much less conservative. Further, this shouldn't explain why lawyers are so conservative even if clients make clear that they cannot be held liable (assuming that such client statements are legally binding).

Given this, one more possibility is that this is purely due to the legal sophistication of lawyers. That is, even consultants should also be afraid to be sued, they failed to avoid it due to not being very sensitive about legal matters.

Answer 1

For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind).

I do this on a regular basis.

This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms.

Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time.

Answer 2

The problem is that percentages as a tool to describe individual predictions suck, so people who are professionally making predictions about individual one-off events tend to avoid them.*

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Imagine a 6 sided die. You're asked to predict the chance of the die showing a 1. We all agree that the chance of rolling a 1 is approximately 100%/6, but only if a long list of implied assumptions hold (perfectly fair dice, no cheating or bias of any kind involved in the roll, the display, and the interpretation of the result, no misunderstanding about what's actually being asked, etc.).

Now let's imagine a client who has no idea how dice work. The die is a black box to them. A black box that will output either a 1", or "not 1". Most of these clients will be unhappy if that blackbox ends up outputting 1 after you told them there's a 5/6*100% chance it won't do that, because they have no way to judge the accuracy of your prediction except for the result.

With a die the client can repeat the roll under equivalent conditions many times and thus figure out that the probabilities match up. Most clients won't have the opportunity to do the same with legal questions.

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*The notable exceptions would be predictions based on mathematical models, but these are usually made by mathematicians and/or physicists, not lawyers.

Answer 3

lawyers often still refuse to give any guidance (even when they clearly do have one in mind).

There is nothing in it for them.

Even if liability is ruled out, there is still risk of the client ending up unhappy should the guidance not lead them to success. There is simply no reason for lawyers to take that risk: they have enough work to make money on anyway. In any event, it is better to be uncertain than sorry.

Answer 4

One reason why we don't have as many radical lawyers as we ought is the full cost of law training. It's perhaps no surprise then why we end up with conservative lawyers, in all the senses of the word.

If law training was made inexpensive we may see a different kind of lawyer emerge ...