Inside the mind of the client: An analysis of litigants' decision criteria for choosing procedures

• Date: 01 September 2018
• Author: Donna Shestowsky
• Published date: 01 September 2018
• DOI: http://doi.org/10.1002/crq.21228

RESEARCH ARTICLE

Inside the mind of the client: An analysis of litigants'

decision criteria for choosing procedures*

Donna Shestowsky

School of Law, University of California, Davis,

Davis, California

Correspondence

Donna Shestowsky, School of Law, University of

California, Davis, Davis, CA 95616.

Email: dshest@ucdavis.edu

This article presents findings from the first longitudinal

study to ask civil litigants prospectively what criteria they

plan to consider when selecting legal procedures and then

retroactively assess the criteria used to make those deci-

sions. The most commonly referenced ex ante criteria are

lawyer's advice, cost, and time. The retrospective reasons

also include these factors, but the list is narrower and

more practical. Litigants who initially listed a desire to

reduce costs or follow their lawyers' advice were later sig-

nificantly more likely to report using procedures for these

reasons, suggesting the stability of these criteria. How-

ever, the same stability did not manifest for other criteria.

Implications for improving protocols for counseling liti-

gants about procedure are discussed.

1|INTRODUCTION

As litigants proceed through a legal case, they often encounter stressful situations that require them

to make critically important decisions. One of the most important decisions concerns the choice of

procedure. For example, should an individual who believes her intellectual property has been misap-

propriated pursue mediation or push for trial? To help litigants make the best choices, lawyers must

have a nuanced understanding of the values and goals that they deem relevant to such decisions.

However, there is remarkably little empirical research on the psychology of litigants regarding such

decision-making tasks.

*This material is based on work supported by the National Science Foundation under Grant Number 09209 95. The author would

like to thank Olga Bykov, Trevor Fehr, Laura Flynn, Davis Jefferson, Linh Luong, Ian Midiere, Sean Newland, Brittany Parks, Char-

lyn Pelter, and Kimberly Procida for their invaluable assistance, and Andrea Cann Chandrasekher, Noam Ebner, Jennifer Eggerling-

Boeck, David Horton, Peter Lee, and especially Roselle Wissler for their insightful suggestions on early drafts. Gratitude is extended

to Dale Glaser, Jared Joseph, and Heather Myers for their assistance with statistical analyses. This article benefited from the author's

participation in the AALS Dispute Resolution Works-in-Progress Conference hosted by the Sandra DayO'Connor College of Law at

Arizona State University. Gratitude is extended to Robert Christopher for his generous financial support of this project.

Received: 2 April 2018 Revised: 12 June 2018 Accepted: 17 June 2018

DOI: 10.1002/crq.21228

© 2018 Association for Conflict Resolution and Wiley Periodicals, Inc.

Conflict Resolution Quarterly. 2018;36:69–87. wileyonlinelibrary.com/journal/crq 69

Information about which factors litigants consider as they make initial decisions about legal pro-

cedures can help lawyers better understand the client's point of view, and consequently offer more

appropriate counsel, which can help them to build credibility, rapport, and trust. Empirical findings

about litigant decision making can also help lawyers better predict the motivations of opposing

parties in ways that are strategically advantageous. Similarly, other legal actors such as policy-

makers, judges, and alternative dispute resolution (ADR) neutrals can use such findings to be more

responsive to the litigant perspective on litigation. Finally, in addition to understanding how litigants

prioritize the factors related to legal procedures, it would behoove lawyers to know whether these pri-

orities change over time: Do litigants plan to make procedural choices based on one set of criteria but

then ultimately rely on a different set? Knowing which criteria remain or become important to liti-

gants as they move through the litigation process will allow lawyers to better understand litigants'

perceptions of their dispute resolution experience.

Although scholars from several fields have researched the issue of litigant decision making,

these studies provide only hints as to what criteria are used to choose legal procedures. A thorough

review of the literature indicates that this is the first longitudinal study to ask litigants, both pro-

spectively (“ex ante”) and after their cases have ended (“ex post”), about the factors implicated in

decisions about which procedures to use. Responses were analyzed to determine whether the domi-

nant factors that litigants mentioned ex ante predict the criteria that were ultimately used to choose

procedures. I first review the modest literature examining the factors that litigants deem pertinent

to decisions about procedure in the early stages of their lawsuits. Then, I describe the research

methodology and summarize the results. I conclude by reviewing the study's insights into how liti-

gants think about procedure and discuss its implications for improving how legal actors counsel lit-

igants about their options.

2|THE PSYCHOLOGY OF LITIGANTS

Getting into the minds of litigants is no easy task. Few lawyers or lawyers-to-be receive any system-

atic instruction regarding the psychology of clients (Robbenolt & Sternlight, 2013). Indeed, although

lawyers interact with litigants extensively—often about sensitive matters with serious implications—

lawyers frequently have little knowledge about what motivates litigants' decisions about their cases

(Relis, 2007), in part because there is a dearth of empirical research on litigants' thought processes.

Although polls and survey studies attempt to discover how lawyers think (see generally, Chorowsky,

2002–2003; Gantt, 2006–2007; Henderson & Farrow, 2009; Isaacs, 1923; Kiser, 2011; Schultz,

1992), civil litigants are seldom the direct subjects of similar inquiries (see Bingham, Nabatchi, Sen-

ger, & Jackman, 2009; Lind, MacCoun, Ebener, & Felstiner, 1990; Sourdin, 2015). A few prior

empirical analyses have compared lawyers and litigants. The results of this work suggest that lawyers

and clients often operate in parallel worlds, and the interests and values that clients bring to litigation

deviate from what lawyers believe those interests and values are or should be (O'Barr & Conley,

1988; Relis, 2007; Sarat & Felstiner, 1997).

Although prior research has provided some accounts of the reasons litigants give for using pro-

cedures after they have used them, few studies have explored the factors that litigants deem rele-

vant to procedure selection at the start of their cases (Arnold & O'Connor, 2006; see also Relis,

2009; Shestowsky & Brett, 2008). In many jurisdictions, court rules, legislation, and professional

codes of conduct suggest that litigants should participate in these decisions. Some Federal District

Courts, for example, require attorneys to certify that they have discussed private and court-

sponsored ADR options with each client (United States District Court, Northern District of

70 SHESTOWSKY