A Second Opinion Can Be Helpful, Or Not.

WDC Journal Edition: Spring 2018
By: James J. Mathie, Mathie Mediation Services

As you approach mediation, one of the things that you might do to figure out what your case is worth is get a second opinion. That’s a good idea. Two heads are better than one. And experience alone, given the wide variety of injuries and circumstances (every case is different), makes predicting value on your own an especially difficult task.

But getting a second opinion won’t help if you don’t use it right. And using it correctly can be difficult because the proper use can be counterintuitive. If you’re like most people, your normal tendency likely won’t produce the most effective use of the other opinion.

There are two questions to ask when combining opinions, one statistical and one psychological: When does combining opinions improve accuracy? And how does the decision-maker use the other opinion?

On the first question, accuracy improves regardless of whether opinions are combined intuitively, that is, subjectively, or mechanically, such as by a simple or weighted average. On the second question, studies show that people tend to discount others’ opinions and favor their own at a rate of roughly 70 percent on self and 30 percent on other.

Once you have the second opinion, you can use it in one of three ways: 1) you can disregard it entirely; 2) you can substitute it fully for your original opinion; or 3) you can adjust your own opinion to somewhere in the middle. Which is the most helpful? Since you’re trying to predict a jury verdict as well as possible, you will want the most accurate estimate, whatever that is.

One study sought to answer that question. Researchers used a four-round estimation procedure to examine and compare the estimation accuracy and estimate-weighting strategies of both law students and experienced plaintiff’s personal injury attorneys to determine the role of a second opinion in the accurate prediction of civil jury verdicts.

The cases evaluated were six actual cases that had gone to trial in California and ranged from a car accident with minor injuries (a $35,000 verdict) to a wrongful death suit resulting from sexual molestation of a five-year-old (a $4,250,000 verdict).

In the first round, participants estimated a jury verdict without any interaction. In round two, they could see their partner’s estimate and modify their own as they saw fit. In the third round, members were required to agree on a joint estimate. And the final round asked participants to make another individual estimate, free to give their partner’s prior input as much or as little weight as they chose.

First-round results showed that experienced attorneys were indeed more accurate than law students. The mean estimation error for law students was .828 as compared to .391 for attorneys. In dollar figures, for a theoretical $100,000 verdict, the students would range from a “too low” estimate of $15,000 and a “too high” estimate of $670,000. The attorney range would be $41,000 and $244,000. Underestimates were more common for both groups with attorneys doing so 63 percent of the time and law students doing so a whopping 87 percent of the time.

The opportunity to view the partner’s estimate in the second-round improved accuracy for both groups. In the hypothetical $100,000 case, the error range for students was $19,000 to $532,000 and for attorneys $48,000 to $210,000.

How attorneys used the other opinion was significant. 82 percent of the attorneys moved less than halfway, including 53 percent who disregarded their partner’s estimate entirely. 12 percent moved more than halfway including three percent who adopted their partner’s opinion.

On average, attorneys moved 20 percent toward their partner’s estimate whereas law students moved one-third of the way. Researchers concluded that attorneys were more able than law students to estimate more accurate outcomes and accept or reject them. However, the attorneys could have reduced their estimate error even further by simply averaging the two estimates. Only 5.5 percent of the attorneys split the difference.

In round three, where the partners discussed and agreed upon an estimate, accuracy improved further still for both groups and for the attorneys was roughly the same as the increased accuracy that would have resulted from simple averaging.

Finally, round four, which tested the ability to retain benefits of the discussion and agreement round, found that accuracy was better than round two but not as good as round three.

Researchers were also able to test the “wisdom of the crowd” by aggregating the first-round estimates. As the size of the group increased, the accuracy also increased, showing the most improvement as the group size went from one to two and two to four. Of special note, aggregation of all the law students produced a more accurate estimate than the average of a single attorney, meaning that working alone to come to an opinion on value can mean that you may be no more accurate than a bunch of law students.

The upshot of all of this is that the best thing to do with a second opinion is probably just to average it with your own. And if you can get more, your accuracy will improve by the simple averaging of all of them.

Remember, when requesting a second opinion make sure not to offer your own. Doing so will likely bias the opinion you request because of the anchor effect – people tend to anchor to an offered number and insufficiently adjust away from it. So, if you want a true second opinion, don’t give your own opinion beforehand.

Also, for ideal accuracy gains, the second opinion should be independent. Little gain can be expected if the two judges are essentially the same, meaning your law partner, who does the same work that you do, may not be the best choice.

In the research, the greatest accuracy gains came from bracketing – where the two estimates fell on opposite sides of the actual verdict – meaning that any move toward the other estimate meant an improvement in accuracy.

Mediation of course offers you the opportunity to consider another estimate of your case’s value. Conveniently, that other opinion promises to be from a different perspective and likely to bracket what the actual verdict will be. So, it’s always worthwhile to pay attention to where the simple average of the estimates would fall once the negotiations have moved to a point where reasonable numbers are being exchanged. That figure is probably closer to the actual verdict than either of the bookend amounts.

See you at mediation.

Speaker Biography
Jim Mathie is a fulltime mediator serving throughout Wisconsin with offices in downtown Milwaukee. Prior to opening Mathie Mediation Services LLC, he was a litigator for nearly 30 years. He is a past president of WDC.

References

Yaniv, I. (2004) The Benefit of Additional Opinions. 13 Current Directions in Psychological Science 75.

Jacobson, J., Dobbs-Marsh, J., Liberman, V.,Minson, J., (2011) Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion. 8 Journal of Empirical Legal Studies S1, 99-119.