Lawyers, Impression Management, and

the Fear of Failure

DONALD C. LANGEVOORT*

C
atherine Gage OGrady has written an insightful article about the
cognitive biases that prevent lawyers from recognizing their
mistakes and hence learning from them, and about how law firms
might respond (via attitudes or policies toward apology or otherwise) to
facilitate better learning, professional growth, and stronger ethics. I find
little with which to disagree and will mainly offer additional reasons to pay
close attention to her argument.
Hard challenges confront any researcher who wants to use insights
from cognitive or social psychology to make predictions about the behavior
of lawyers.1 By and large, work in psychology is experimental, placing
subjects (usually students, although online tools like the Mechanical Turk
open new possibilities) in highly controlled settings, with relatively short
duration and low stakes, in search of behavioral patterns. That creates at
least two problems, even if we assume that the findings are replicable and
statistically significant. One is that the experimental design can never
recreate the atmosphere actually faced in the fielde.g., young associates
working every day (and often night) in a law firm with high-powered
incentives in terms of compensation, retention, and promotion.2 The other
is that any pool of young associates, or lawyers generally, are not drawn

* Thomas Aquinas Reynolds Professor of Law, Georgetown Law Center. Professor

Langevoort has received the Frank Flegal Teaching Award at Georgetown, and the Paul J.
Hartman Award for Excellence in Teaching at Vanderbilt. He has been a visiting professor at
Harvard Law School and the University of Michigan Law School, and a lecturer at the
Washington College of Law, American University.
1 For a good collection of insights from psychological research, see generally PAUL BREST &

LINDA HAMILTON KRIEGER, PROBLEM SOLVING, DECISION MAKING AND PROFESSIONAL

JUDGMENT: A GUIDE FOR LAWYERS AND POLICYMAKERS (2010) (discussing how certain social
biases and judgments impact how lawyers view human behavior and create arguments based
on these behaviors).
2 Obviously, not all newer lawyers work in law firms. But OGrady concentrates on those

who do, and so will I in these comments.

75
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from a random segment of the young adult population, but are instead a
relatively elite sampling. They have been specially selected for the job
(through the rituals of law school and the entry-level hiring process that
OGrady describes) with the expectation that they are less prone to costly
errors than ordinary folk.
All this makes it important to couple experimental work with rigorous
field studies and related ways of testing actual lawyer cognition and
behavior before making strong predictions or normative suggestions.
Unfortunately, practicing lawyers are particularly uncooperative in
submitting to intrusive scholarly observation. No doubt some of this has to
do with norms of confidentiality that are present with respect to much
legal work. It is likely that some of this lack of cooperation also has to do
with insecurity and a desire to manage impressions.3
Much of my own research tries to address these difficulties by looking
at a special set of cognitive biases to which professional elites may be
particularly prone and examining their impact in economic settings that
have comparable institutional incentives but greater transparency.4 A large
amount of work in organizational behavior confirms the existence and
persistence of certain biases in elite settings, which suggests that they are
somehow adaptivee.g., biases that promote competitive success rather
than hinder it. One that OGrady stressesoverconfidencefits solidly
into this category, and researchers in finance and organizational behavior
find ample evidence of it.5 Ill come back to this shortly, but first want to
comment on one implication that comes from reading her article.
OGrady implies that the cognitive biases she identifies operate most
powerfully among young (new) lawyers, which might be read to suggest
that they then diminish with professional growth. I think its an open
empirical question how new practicing lawyers perceive the risk of mistake
and how perceptions change with experience. Far from overconfident,
many seem palpably terrified of making errors during their first months, if

3 See John Flood, Doing Business: The Management of Uncertainty in Lawyers Work, 25 L. &
SOCY REV. 41, 42, 47, 66 (1991) (proposing that lawyers who work in firms in non-litigated
cases are best equipped to evaluate the importance of managing uncertainty in the lawyer-
client relationship).
4 I have recently written a book using this approach to behavior in financial settings

relevant to the task of investor protection, with extensive citations to this literature. DONALD
C. LANGEVOORT, SELLING HOPE, SELLING RISK: CORPORATIONS, WALL STREET, AND THE
DILEMMAS OF INVESTOR PROTECTION 36 (2016) [hereinafter LANGEVOORT, SELLING HOPE]. On
lawyers in particular, see Donald C. Langevoort, Getting (Too) Comfortable: In-house Lawyers,
Enterprise Risk, and the Financial Crisis, 2012 WIS. L. REV. 495, 51112, 51718 (2012) (describing
the challenge lawyers may face of not giving into legal groupthink as a consequence of
working in a competitive firm).
5 LANGEVOORT, SELLING HOPE, supra note 4, at 2627, 3542.
2017 Lawyers, Impression Management 77

not years, sometimes to the point of paralysis. Aside from some top-notch
clinical programs, law schools do terribly at preparing students for the
reality of practice, and law graduates know it. We dont need to resort to
psychology to predict many basic mistakes that simply result from
inexperience. If anything, they may over-learn from their mistakes, and
beat themselves up excessively.
Once an associate starts mastering the craft, however, I suspect that the
motivational biases that OGrady identifies in fact grow in power, and
continue to do so throughout the lawyers career. As noted earlier,
overconfidence and egocentric construal are biases to which successful
professionals seem especially prone. The latter is manifested in the
foundational fundamental attribution bias, which in self-evaluations
tend to attribute successes to skill, and failures to bad luck. Research in
organizational behavior finds ample evidence of thisand hence the
failure to learn from feedbackeven among the most prominent of
managers and firms.6 There should be no surprise if this extends to
lawyers, too. There are too many positive consequences of these traits in
terms of motivation and rewarded risk-taking to outweigh the occasional
learning disability. In sum, I would predict that more experienced lawyers
make fewer mistakes, but become more resistant to acknowledging those
they do make.
That said, I am entirely persuaded by her account of how and why
mistakes are deflected from consciousness. I dont think she puts quite
enough emphasis on the competitionreal and perceivedinside firms
and externally that my colleague Mitt Regan has written so well about.7
Lawyers (and law students) sense a level of hyper-competition in legal
careersa relentless tournament in which the threat of loss (to identity and
ego, not just of the pecuniary sort) looms large. Overconfidence may be a
buffer against this, but not completely. A particularly insightful
psychology commentary for our purposes is by Scott Rick and George
Loewenstein, entitled Hypermotivation.8 Rick and Loewenstein respond to
work in behavioral ethics that locates a check on ethical overreaching in the
basic human desire to see oneself as moral and ethical.9 In other words, the
insight is that people will, usually, only cheat insofar as they can

6 Guoli Chen et al., Making the Same Mistake All Over Again: CEO Overconfidence and

Corporate Resistance to Corrective Feedback, 36 STRATEGIC MGMT. J. 1513, 151314, 151619 (2015).
7 MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER 56, 8

(2005); see Milton C. Regan, Jr., Moral Intuitions and Organizational Culture, 51 ST. LOUIS L.J. 941,
942 (2007).
8
Scott Rick & George Loewenstein, Hypermotivation, 45 J. MKTG. RES. 645, 645 (2008).
9
Id.; see Nina Mazar et al., The Dishonesty of Honest People: A Theory of Self-Concept
Maintenance, 45 J. MKTG. RES. 633, 634 (2008) (discussing the theory of self-concept
maintenance in correlation to dishonest behavior).
78 New England Law Review Vol. 51|1

rationalize the behavior as that of a non-cheater. They cease if and when

the cognitive dissonance becomes too great.
Rick and Loewenstein claim that this ignoresor at least places too
little emphasis onwhat they regard as the most pernicious motivator of
unethical behavior: fear of loss, known in the literature as loss aversion.10
Loss aversion is the well-known phenomenon that people take greater
risksethical, legal, and otherwiseto avoid a perceived loss than to get a
comparable gain. This is more than simple risk aversion, and is entirely
dependent on how the choice is framed. When a loss frame is triggered,
the level of subconscious aggressiveness rises noticeably, and with that,
greater willingness to push and exceed ethical boundaries. The authors
note how pervasive loss frames can be in highly competitive, professional
settings. Tournament-like institutional structures create more losers than
winners. Importantly, winning and losing are assessed as against
subjective aspirations, not abstract reality. The more one expects, the more
likely a threat will be framed as a potentially large loss. Here we can see
the interaction with overconfidence. While overconfidence may seemand
probably to some extent isto be a buffer against fear of losing, it also
raises the expectations bar, making threats more threatening by enlarging
the magnitude of the threatened loss.
I would predict that hypermotivation is strongly at work in lawyers
inner lives, including how they react toand deflectcues relating to the
possibility of having made a mistake. Serious mistakes create a natural loss
frame, amplified in the mind of someone with high expectations or fear of
failure. And we know from psychological research that people become
more susceptible to all automatic biases when they are tired, stressed, or
ethically depletedhaving had to struggle with difficult circumstances
until they can hold the line no longer.11 That surely describes the life of a
lawyer in a competitive environment.
So whats my point? As indicated, I dont disagree with anything
OGrady says about how the risk of mistake is processed mentally, and
agree with her that overconfidence, motivated reasoning, and the like will
deflect the awareness of error necessary for beneficial learning from the
experience. Hypermotivation amplifies these traits, perhaps considerably.

10 See Rick & Loewenstein, supra note 8; see also Catherine Gage OGrady, Behavioral Legal

Ethics, Decision Making, and the New Attorneys Unique Professional Perspective, 15 NEV. L.J. 671,
685 (2015) (discussing self interest, specifically the motivation of young attorneys to succeed,
unconsciously diminishing objectivity).
11 See David T. Welsh & Lisa D. Ordez, The Dark Side of Consecutive High Performance
Goals: Linking Goal Setting, Depletion and Unethical Behavior, 121 ORG. BEHAV. & HUM. DECISION
PROCESSES 79, 7981 (2014).
2017 Lawyers, Impression Management 79

And thats the problem. The stronger these traits are, the stronger the
intervention has to be to offset them.
The normative part of OGradys article is a call for two things. First,
law firms should recognize the barriers to constructive learning from
mistakes, and overcome them via structural reforms. Second, the role of
acknowledgement and apology should be taken more seriously.
As to the latter, I am agnostic. As she points out, there is a great deal of
writing on apologies in health care settings, and their effect on malpractice
claims. I am not sure that we fully understand the causal effects of
apologies on patient perception or behavior, and the apology movement
may be more of a social trend than an evidence-based conclusion. In any
event, the law and medicine settings may be different enough to make
cross-referencing dangerous. I have a vague intuition that expected
apologies will raise fears among lawyers ex ante as often as they help
resolve distress ex post.
Apology aside, OGradys main point is that the cognitive phenomena
she identifies has to become known to law firm leaders so that they take
more considered efforts to address the problem. With that, I also concur
completely, but raise two concerns. One is that supervisors and monitors
face their own set of biases, especially if they are the ones who gave the
more junior lawyers their responsibilities. Motivated reasoning,
confirmation bias, and loss aversion are abundant in assessing the behavior
of others.12 The other is thatespecially if I am right that the cognitive
pressures increase with lawyerly successfirms themselves may develop
cultures built around confidence and hypermotivation. They will not easily
morph into ones that celebrate the public or private confession of error.
My final comment involves a surprising omission from OGradys
behavioral survey. One large area of interest in social psychology and
behavioral ethics has to do with diversity, especially gender diversity.
Many studies observe significant gender differences on phenomena like
overconfidence, competitive arousal, and risk taking, with men more prone
to aggression (including ethical aggression) than women.13 It is certainly
stereotypical that men have more trouble acknowledging any form of
vulnerability, to themselves or others.
Any scholarly claim that there are significant cognitive differences
between men and women in success-producing behaviors naturally
triggers sensitive equity issues. So, too, here. To be sure, self-selection bias
is at work in the same way discussed above: women who choose to work in
highly competitive settings may be different from the more typical women

12 Francesca Gino & Max H. Bazerman, When Misconduct Goes Unnoticed: The Acceptability of

Gradual Erosion in Others Unethical Behavior, 45 J. EXPERIMENTAL SOC. PSYCHOL. 708, 710 (2009).
13 See LANGEVOORT, SELLING HOPE, supra note 4, at 15759.
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studied in the experiments.14 My suspicion, however, is that the

inevitableif excruciatingly gradualrelative feminization of the
professional workplace resulting from more women in power will have
noticeable effects on both mistake recognition and the willingness to
apologize. For all the reasons OGrady stresses and more, that will be
welcome progress.

14 See Paolo Sapienza et al., Gender Differences in Financial Risk Aversion and Career Choices are
Influenced by Testosterone, 106 PROC. NATL ACAD. SCI. 15268, 15268 (2009),
http://www.pnas.org/content/106/36/15268.full.pdf [https://perma.cc/3W79-LPTT].