Randall Kiser 
Beyond Right and Wrong 
The Power of Effective Decision Making for Attorneys and Clients

Let us endeavor to see things as they are, and then enquire whether we ought to complain. Whether to see life as it is, will give us much consolation, I know not; but the consolation which is drawn from truth if any there be, is solid and durable: that which may be derived from errour, must be, like its original, fallacious and fugitive. Samuel Johnson, Letter to Bennet Langton (1758) Attorneys and clients make hundreds of decisions in every litigation case. From initially deciding which attorney to retain to deciding which witnesses to call at trial, from deciding whether to ?le a complaint to deciding whether to appeal a verdict, attorneys and clients make multiple, critical decisions about strategies, costs, arguments, valuations, evidence and negotiations. Once made, these de- sions are scrutinized by an opponent intent on exploiting the consequences of any mistake. In this intense and adversarial arena, decision-making errors often are transparent, irreversible and dispositive, wielding the power to bankrupt clients and dissolve law ?rms. Although attorneys and clients may regard sound decision making as incidental to effective lawyering, sound decision making actually is the essence of effective lawyering. An attorney’s knowledge, intelligence and experience are inert re- urces until the attorney decides how to deploy those skills to serve the client’s interests. Those decisions, in turn, largely determine a case’s course and outcome.

Table of Content

EVIDENCE.- Prior Research on Attorney-Litigant Decision Making.- A Current Assessment of Attorney-Litigant Decision Making In Adjudicated Cases.- CAUSES.- Psychological Attributes of Decision Errors.- Institutional Impediments to Effective Legal Decision Making.- CONSEQUENCES.- Legal Malpractice Liability For Settlement Counseling and Decision Errors.- Ethical Implications of Attorney-Client Counseling and Decision Making.- SOLUTIONS.- Obstacles to Becoming an Expert Decision Maker.- Personal Expertise in Legal Decision Making.- Group Expertise In Legal Decision Making.- Peer Review, Client Evaluations and Law Firm Audits.- Conclusion.

About the author

Randall Kiser is the principal analyst at Decision Set®, a decision services and professional development company in Palo Alto, California. Mr. Kiser, a decision analyst and an attorney, has worked closely with litigants, insurers and attorneys in assessing risks, evaluating litigation alternatives and improving individual and organizational decision-making skills. He is the author of How Leading Lawyers Think (Springer, 2011) and the lead author of the widely read article, “Let’s Not Make A Deal: An Empirical Study Of Decision Making In Unsuccessful Settlement Negotiations” (Journal of Empirical Legal Studies, Vol. 5, No. 3, September 2008). Mr. Kiser received his law degree in 1978 from the University of California, Berkeley (Boalt Hall), and obtained his undergraduate degree in 1975 from the University of California, Davis (Highest Honors). His legal education is complemented by the award in 2002 of a certificate in leadership from the Peter F. Drucker Graduate School of Management, Claremont Graduate University.