I have had a series of mediations in which I have wondered who was actually in authority? The attorney or the client? As we have all learned somewhere along the line, when it comes to attorneys representing clients, it is the client’s case, not the attorney’s, and so it should be the client making the ultimate decisions. Indeed, Section 3.2. (at pages 13-18) in the ABA Section of Litigation’s “Ethical Guidelines for Settlement Negotiations” (August 2002) notes that it is the client who has the ultimate authority over whether to settle. Obviously, the client usually makes that decision based on the “advice of counsel.” But, ultimately, it SHOULD be the decision of the client, not the attorney.
My recent mediations though have led me to ponder; at what point does that “advice of counsel” become more than simply counselling, such that it is the attorney and not the client who is making the ultimate decision to settle? That is, who, in truth, is the “decider”?
Once again, it is because I am reading Influence: Science and Practice by Robert B. Cialdini (4thed. 2001) that I am asking these questions. In one of the last chapters, Cialdini discusses the principle of authority, noting that we all tend to “follow an expert.” (Id. at 179.) As an example of how powerful is the principle of authority, Cialdini recites a famous experiment by Milgram in 1974 in which because an “authority” figure told the participants to do so, the participants delivered what they believed to be ever increasing electrical voltage shocks to a subject every time the subject gave a wrong answer. Indeed, when the “subject” (a confederate of the authority figure) started screaming, yelling and begging the participant to stop, the participant continued increasing the voltage because the authority figure told him to do so. (There were no real shocks- it was all fake; the confederate was a very good actor!) Milgram’s unsettling conclusion was that the participants were unable to defy the wishes of an authority figure. (Id. at 182.). That is, we all tend to have ingrained within us, an “obedience to authority” principle. (Id. at 183.)
Why this blind obedience? Cialdini believes that it is simply a shortcut that we take, or, what others may call a heuristic (or System 1 thinking vs System 2 thinking) to get through the day. There is so much information in the world especially in this age of the world wide web, that we cannot possibly have the time to process and analyze each new piece of information that comes along. We would never get through the day, if we had to stop and think and analyze every item of information thrown at us. So, we use shortcuts to get through it all. And when a “recognized” expert says that this is so and so, we will take the easy way out, take her word at face value, believe her and follow the advice. (Id. at 185.) It is convenient, and easy and so we stop thinking and blindly obey (Id. at 186.)
And who do we recognize as “experts”? Those with “titles” (e.g. attorney at law); those who are well dressed or who look the part (e.g. a police officer in uniform, or a business person in a well-tailored suit vs someone wearing cut-offs and a t-shirt); or those who have the trappings or symbols of “authority” (e.g. expensive homes, or expensive cars.) (Id. at 188-196).
Our System 1 thinking uses these outward signs unconsciously to make us stop thinking and accept what the authority is saying without analyzing simply because she appears to be an “authority.”
And so… an attorney with the title of Esquire can potentially use “authority” to dictate rather than counsel a client about settlement. While Cialdini notes that two defenses to “authority” is to ask (1) is this authority truly an expert? and (2) Is the authority’s expertise and credentials truly relevant to the issue at hand? (Id. at 196), these questions do not work when it comes to lawyers. Many clients are true layman, and not sophisticated in the law; indeed, that is precisely why they are hiring an attorney. And… they do not have the time or inclination to conduct their own legal research to determine if their lawyer is truly providing correct advice. So… they take the shortcut… sometimes unwittingly to their own detriment.
And… as a mediator, there is little I can do about it. I can discuss the pros and cons of the matter in front of the client, but it is the lawyer, not me, who has ultimate sway over the client. And… if the lawyer does more than merely “counsel” the client, by using the power of authority, and the client accepts this shortcut, then, quite unfortunately, so be it.
So… authority can be a good thing, but also very dangerous.
….Just something to think about.
By Phyllis G. Pollack