We recently attended an event organised by the Association for the Protection of Intellectual Property (GRUR) about forecasting future judgments. Dr. Ulrich Hildebrandt, a partner at the law firm Lubberger Lehment, gave a fascinating talk on how to (better) predict the result of court decisions in legal (trade mark) disputes. While many would say that knowing the law inside out is key, the speaker explained that this was not enough. Rather, lawyers should use behavioural insights to better understand the judge’s thought process.
We were happy to find out that Dr. Hildebrandt is apparently as enthusiastic about rational thinking as the members of the Rational Think Tank. Unfortunately, however, the same could not be said about his entire audience. A number of trade mark practitioners in the room did not seem to feel entirely comfortable with the concepts presented by the speaker.
But first things first: Dr. Hildebrandt started his presentation off with a hypothetic but very realistic dilemma. A lawyer is asked by a trade mark owner to assess the risk of losing a legal dispute against a competing brand. From a legal point of view, the lawyer has to answer one question, namely whether there is a so-called ‘likelihood of confusion’ between the two brands (i.e., are the signs similar enough to cause confusion?). From a decision-making point of view, however, the assessment involves three interrelated questions:
- Will consumers confuse the marks?
- Will a judge believe that consumers confuse the marks?
- Does the lawyer expect a judge to believe that consumers will confuse the marks?
By no means an easy task! Of course, the lawyer would not have to answer these questions without any guidance. Various factors of the ‘likelihood of confusion’ are set out in the applicable legal provisions. And as if to make sure that even the sceptic members of the audience could benefit from his presentation, Dr. Hildebrandt insightfully summarised the recent case law dealing with the relevant factors.
Then, referring to the work by Daniel Kahneman (2011), the speaker invited the audience to look beyond these legal aspects. He argued that knowing the leading cases remains essential for any risk assessment, but that considering research on decision-making might help lawyers improve their predictions.
One of the most contentious points made by the speaker was linked to ‘substitution’ (you can find a comprehensive discussion of ‘substitution’ on the less wrong blog here). What is substitution, you may ask? In short, Daniel Kahneman proposes in “Thinking, Fast and Slow” that people sometimes substitute a complicated question that they cannot readily answer with a related question, which they are able to answer without effort. Thus, people simplify what appears to be a difficult or impossible task by solving instead a much simpler one. Kahneman reasons that substitution enables us to provide quick answers to tough questions, without having to think too hard.
To provide an example for the audience, Dr. Hildebrandt mentioned that, when asked “How happy are you with your life these days?“, people actually answer the simpler question “What is my mood right now?” – as suggested by research conducted in the 1980s (Strack, Martin & Schwarz, 1988). Again, the possible explanation is that providing an adequate answer to the concept of happiness is too difficult. We are therefore inclined to substitute the first question, without noticing, and instantly provide an answer to the second question. Based on these findings, Dr. Hildebrandt contended that substitution could also become relevant in legal assessments.
Returning to the above dilemma, Dr. Hildebrandt stated that the judge, for instance, might substitute the question as to whether consumers will confuse the brands with a much simpler question: “Would I myself confuse the marks?” or “Do I think it is fair what the competitor is claiming?” As a consequence, a lot of information that, strictly speaking, should not be relevant, may turn out to have a significant impact on the judge’s decision. If we accept that this is true, then any lawyer trying to predict the judge’s final decision would be well advised to take a much broader array of criteria into consideration than foreseen in the legal provisions. Which criteria exactly? This was subsequently the subject of fierce debate (and we highly recommend “Superforecasting” by Tetlock & Gardner if you are generally interested in this topic).
As indicated in the introduction of this post, not all of his listeners agreed with Dr. Hildebrandt. Judges would not be affected by any of the presented distortions, someone argued. It goes without saying that the Rational Think Tank clearly sides with Dr. Hildebrandt. If anything, the harsh criticism of some listeners was an echo of an observation that Kahneman already addressed in “Thinking, Fast and Slow“: People believe that they act purely rational all the time, while, in fact, we make many decisions much more intuitively without realising it. Judging from the reaction of the audience, this difficulty to appreciate our own decision making process and its flaws may also be wide-spread among lawyers. After all, why should lawyers or judges be immune to the cognitive errors analysed by Kahneman?
CHRISTIAN TENKHOFF
Christian Tenkhoff works as an Associate in the Trade Marks & Designs Department of international law firm Taylor Wessing in Munich. You can follow him on twitter here.
(Photo courtesy of pixabay)
