The Ethos and Pathos of Surprises: Lawyers' Learning from Unexpected Wins and Losses through Counterfactual Reasoning

Description

To learn from experience, people often engage in counterfactual thinking, a form of cognitive heuristic (decisional rule of thumb) that works as a mental simulation to arrive at a causal coherence in a chain of possible antecedents that might have influenced the present outcome. (Kahneman, 1995; Lundberg & Forst, 1992; Olson, Roese, & Diebert, 1996). Mental simulations are imitative and hypothetical cognitive constructions of a series of events based on a causal sequence of successive interdependent actions and their interactions (Taylor, Pham, Rivkin, Armor, 1998). In particular, counterfactual reasoning facilitates learning from past events, especially mistakes and surprises. To arrive at a better understanding of the causal chain of events that lead to the present surprises or mistakes, decision makers simulate how alternative pasts might lead to different outcomes to better future performance. A student who failed an exam might lament: “Had I read the exam questions more carefully, I would have done better!” Alternatively, the student might reason: “Had I studied harder, I would have gotten an A!” Or the student might take solace in thinking “At least I got a B, it could have been a C, had I not guessed well!”Particularly important and challenging is examining how professionals learn from rare, ambiguous, or surprising events with no obvious causality (Weick, 1995). Most studies have used college students as experimental subjects, with the exceptions of empirical and theoretical work on pilots (Morris & Moore, 2000), jurors (Spellman & Kincannon, 2001), and sport-casters (Sanna, et al., 2006). These studies focus on closeness to losing (“almost losing”) and closeness to winning (“almost wining”) as counterfactual antecedents for sense-making and learning. Closeness of an event to a desired or feared outcome increases spontaneous counterfactuals because of the event’s mutability—the consequential event could have easily turned out differently.To address the empirical dearth, we examine lawyer’s counterfactual reasoning, adding to the iota of empirical work performed on professionals.To address the theoretical gap, we focus on surprising wins and losses as counterfactual antecedents.Past studies simply count the number of counterfactuals generated or analyze counterfactual directions (how things could have been better or worse).We analyze the intricacies of counterfactual reasoning with additional criteria:person vs. context attribution,logical consistency,historical consistency,theoretical consistency,statistical consistencyprojectability,plausibility, andcomplexity.Few studies examine the impact of demographic variables on counterfactual generations.We examine how lawyers’ gender, performance, experience, types of law practiced, and age affect the various characteristics of the counterfactual reasoning processes discussed above.