Performance metrics for lawyers are always tricky. You can give the best advice, draft great documents, prepare thoroughly, brief witnesses and even hire the best barristers, and yet you can still lose the case. In litigation, as in life, things often don’t go according to plan: the Judge takes an idiosyncratic view of the evidence, a witness falls ill, or stumbles under the pressure of cross-examination, or new evidence from the opposing party comes to light … and the whole case slides into chaos.
The lawyers will say that they did their job, that they have performed their role as they should have done, and to the best of their abilities, but in circumstances where (bad) luck played a key role, measuring the lawyers on the outcome of the case is not going to lead to any improvement in performance. The converse of this scenario is also true: you may have done your job very badly but still won the court case. It would be an unusual lawyer who didn’t attribute the good outcome to their superior performance.
A decision to commence litigation is – to use a poker analogy – a decision where you do not know what cards your opponent holds, or what future cards might be played. Decision-making in the legal sphere – as in any sphere – is much like decision-making at the poker table: it is a prediction – a bet, if you will – on what might happen in an uncertain future, using incomplete information
This is the central thesis of Annie Duke’s bestselling book, Thinking in Bets which has the subtitle, Making Smarter Decisions When You Don’t Have All The Facts. Duke was a World Series Poker player and a PhD student in psychology and has become a sought after speaker and advisor to companies wanting to improve their decision-making capabilities.
Ms Duke advocates that we need to learn from the outcomes of our decisions, but we should ignore the ones based on luck; and that approaching a decision probabilistically – literally asking ourselves, what would you bet on the success of this decision? – forces us to review the data more forensically, check our biases and expose our assumptions.
In many local authorities the induction of new members nearly always involves some training on making decisions. The focus is usually on the process such as: which committee makes what decision; or, how to avoid legal challenges; reasonableness; bias and predetermination – to name a view of the topics that are commonly rolled out.
While officers are adept at setting out the factual background and presenting the numbers and alternatives, these are not usually expressed as a percentage chance of success, and rarely admit to not having all the facts. And in the committee meeting, it is rare to hear a member say to an officer – how sure are you? It is then left for the political judgement of elected politician to ‘take a punt’ on the future.
As well as confusing skill with luck, Ms Duke maintains that one of the difficulties in decision-making is the tendency to form beliefs first then select facts to support those beliefs. This happens in the litigation context. You have dealt with a difficult opponent over many weeks of your case; you think they are unreasonable, difficult, vexatious even, and to cap it all the tone of their correspondence irritates you. And you think that these incontrovertible ‘facts’ will be apparent to the Judge hearing your case. You read their witness statement, confident that you can spot the logical inconsistencies and flaws; your own evidence and legal arguments on the other hand cannot be seen as anything but clear and concise. You become blind to the weaknesses in your case.
This is a danger in a political environment. The selection of facts to support pre-ordained beliefs might seem to some the very definition of politics, although there is a myriad of decisions that are about good management rather than political dogma.
Whether you should re-open your local leisure centre, dispose of a particular property or impose a local lockdown, are not usually matters of political expediency; rather they are (or should be) decisions arrived at after careful consideration, and yet they still remain ‘bets’ on a possible outcome.
As member/officer protocols across local government will testify, the role of the local authority officer is to provide unbiased, objective, non-partisan advice based on evidence, or, at least, the best picture of the evidence obtainable. And the best officers acknowledge the uncertainty of different outcomes.
Viewing the chances of any successful outcome as a bet is the antidote to a type of thinking – and decision-making – that places too much weight on public perception, or values a kind of ‘boosterism’ that might tend towards extravagant (and unsubstantiated) predictions of a future state. How much would you bet on the success of a court case, a plan, or a senior job appointment, or strategy? To ask the question in this way forces the decision-maker to validate the information upon which the decision is based. Do we need to check that information further? Is there a hidden assumption needing to be exposed?
How might lessons from poker apply to local authority decision-making?
An officer’s governance skills are not usually on the list of attributes assessed in our appraisal processes but being good at governance can flush out ‘motivated rationality’, as Ms Duke might say, that is, cogent arguments that might justify a belief, rather than a proper interrogation of the evidence.
Good systems and policies, and a culture that promotes good governance is a starting point. Reports for decision-makers that contain future-proofing things like the assessment of risks, the alternatives considered, and the reasons why they were discounted, all rendered in objective and neutral language, might seem dull, but good governance makes for good decisions. And as the 2018 Best Value report into Northamptonshire CC unashamedly stated: ‘In local government there is no substitute for doing boring really well.’ Governance helps with betting.
Scrutiny, as a function, often happens after the event. A controversial decision is taken, members are unhappy or don’t feel listened to, and call in-powers. Good scrutiny often happens before the event, with members developing and refining policy to inform the decision-maker. Ms Duke offers several practical tips that scrutiny could add to their armoury that would improve decision-making. One such tip she calls ‘backcasting’, which is imagining an ideal future or outcome in some detail and then working out the prior decisions necessary to get to that future state. Or, as an alternative to backcasting, she suggests undertaking a ‘pre-mortem’, a sort of ‘devil’s advocate’ approach, which requires imagining some failure, or a state where things have gone awry, and then working out what might have been the cause.
Poker strategies and lawyers are not an obvious mix, but learning lessons from the sorts of legal scrapes and disputes that local authorities get into is another way of navigating decisions. What went wrong, and why, are not often examined.
In the medical field, and in some emergency services, a ‘hot debrief’ is often held after an incident where practitioners are asked to examine what went well, what didn’t go so well, what lessons can be learned, and what might need to change.
Conducted in the right way, such debriefs can be a powerful learning opportunity for an organisation. Litigation is time-consuming and costly, and the return on the investment should include, at the very least, some learning points.
Not all outcomes are based on luck; the ones that are should be ignored, and the ones based on good decision-making need to be mined, and their value banked in the corporate memory. They can make you more adept at betting on the future with the cards you are dealt. And decision-makers should talk to their lawyers. Lawyers, let’s be honest, can be a pain, but the good ones have studied the outcome of past decision-making, and learned the lessons.
Nick Graham is the director for legal and democratic services at Buckinghamshire Council