Washington Lawyer - September/October 2020 - 36

FEATURE
exposed, resulting in loss of the earlier tax benefits and a large fine,
not to mention potential reputational damage.
In this example, following the lawyer's advice means not being able to
enjoy the benefits of claiming the workers as independent contractors
and can be conceptualized as a "loss," albeit not a horribly onerous
one. As such, in this context, following the lawyer's advice produces
an aversive consequence that is immediate and certain, yet relatively
small. Alternatively, disregarding the lawyer's advice has the potential
to produce a severe, nasty consequence sometime in the future (the
audit, loss of benefits, a large fine, and reputational damage), an
aversive consequence that is delayed and uncertain, yet relatively
large. Oftentimes, clients are willing to take such risks and address the
potential consequences later. In other words, clients may adopt an
"I will deal with it when it happens" attitude.

LAWYERS may increase
their CLIENTS' LIKELIHOOD
of seriously CONSIDERING
advice by providing more
CONCISE reports with
less LEGAL JARGON.
Returning to the trademark example mentioned previously, any
intellectual property lawyer knows that commissioning a trademark
clearance search can mean the difference between a company losing
a relatively small amount of money, such as trademark counsel's fees for
conducting the search, and losing the company's entire investment in
a project - pursuing a marketing campaign to expose customers to
the new brand, producing products and product packaging featuring
the new trademark - when it is forced later to abandon ship because
a prior trademark user is threatening to sue the company for trademark
infringement and unfair competition.
Ideally, the client's choice should be based on an objective review of the
relative risks. However, a client's ability to consider risks dispassionately
can be outweighed by the client's preexisting beliefs, desire to justify
past investment, and tendency to avoid an immediate adverse consequence. In the process, the client may convince herself that counsel's
naysaying is just the lawyer being overly cautious and trying to guard
against potential malpractice liability.

WHAT LAWYERS CAN DO
Fortunately, psychological research also provides lawyers with insights
into how they might be able to help clients counter their impulses and
retain the ability to consider advice dispassionately.

36 WASHINGTON LAWYER

SEPTEMBER/OCTOBER 2020

Although lawyers cannot force clients to decide one way or the other
(as much as they'd sometimes like to), they can provide the information
necessary to make an informed decision. To counter confirmation bias,
counsel can encourage the client to play devil's advocate before offer-ing
legal advice. Doing so may help the client to objectively consider
alternatives to his initial ideas and minimize confirmation bias when
he later evaluates the legal advice from counsel.12
Moreover, counsel should be mindful that people process information
differently depending on their levels of motivation and ability. For
instance, when highly motivated and capable people have adequate
time to consider information, they are more likely to thoroughly weigh all
the pros and cons. Conversely, when people are less motivated and lack
the time or ability to digest the information presented to them, they
tend to focus more on superficial aspects (e.g., "The lawyer is being
overly cautious," or "My friend did not get in trouble for doing what
I want to do") to make quick and easy decisions.13
That being said, lawyers may increase their clients' likelihood of
seriously considering advice by providing more concise reports with
less legal jargon. Doing so may serve to reduce clients' cognitive burden
in comprehending the information presented. In addition, where
time permits, it may also help to encourage clients to take a step
back and reflect upon the advice rather than make a decision right away.
Lastly, the prompt mailing of client invoices may also encourage clients
to more carefully consider advice. Based on what we know about the
sunk cost fallacy, people are more likely to listen to paid advice than free
advice because they feel the need to use the services they have paid for
to justify the expense.14 Receiving an invoice closer in time to when legal
opinions are rendered serves as a reminder of the client's monetary
investment in obtaining the lawyer's advice.
Although the lawyer's options for countering the powerful psychological
phenomena governing client decision making may be limited, perhaps
an awareness and better understanding of some of these phenomena
can provide a measure of solace to counsel who have to bite their
tongues and avoid saying, "I told you so."
Stephen D. Lott is an intellectual property attorney with Seyfarth Shaw LLP.
Chit Yuen Yi holds a doctorate in lifespan developmental psychology and is
an instructor at Florida International University. Aaron D. Dumas holds a
master's degree in psychology with a concentration in behavior analysis and
works as a data analyst at Florida International University.

NOTES

1 See District of Columbia Rule of Professional Conduct 1.2 (Scope of
Representation) ("a lawyer shall abide by a client's decisions concerning the
objectives of representation . . . and shall consult with the client as to the
means by which they are to be pursued. . . . A lawyer shall abide by a client's
decision whether to accept an offer of settlement of a matter. In a criminal
case, the lawyer shall abide by the client's decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial, and
whether the client will testify"); see also Model Rule of Prof'l Conduct
R. 1.2. Of course, it should also be noted that, while "[t]he client has ultimate
authority to determine the purposes to be served by legal representation
. . . a lawyer is not required to pursue objectives or employ means simply
because a client may wish that the lawyer do so."

Washington Lawyer - September/October 2020

Table of Contents for the Digital Edition of Washington Lawyer - September/October 2020