IP ADR Dictionary: "F" is for Fundamental Attribution Error
First Let's Talk About Anger
Please raise your hand if your clients -- corporate clients -- are angry about the burdens of litigation. Irritated with the document "demands" and interrogatories. Frustrated about the e-discovery. Ticked off at the way opposing counsel asks them questions as if they're lying. Hot under the collar about the mounting attorneys' fees and the distance between the day suit was filed and the probable day on which a trial might eventually be scheduled. Simmering about the time the litigation consumes, time they'd prefer to be spending doing their actual jobs -- planning for and implementing business strategies for a profitable future instead of fighting about the unprofitable past.
And we're not even talking about your clients' anger at the defendant who has stolen their intellectual property or that of the company they work for. And if you believe that powerful people in highly sucessful and profitable businesses do not fear that litigation might hurt their careers, follow the Qualcomm/Broadcom e-discovery story and the fate of its general counsel for a little while, here, here and here.
Why I'm Talking About Anger
Dealing with anger is my job. As a negotiation coach, mentor, facilitator, and mediator, I need the parties to intellectual property litigation to be thinking as clearly as they possibly can when challenged to settle an important piece of litigation. Everyone arrives at the mediation in some degree of anger -- from mild irritation to controlled rage. Because anger tends to prevent the parties from thinking clearly and from sharing information that would dramatically increase their ability to achieve the best possible negotiated resolution, I'm usually called upon to help the parties move from hostility to collaboration.
So What's "Fundamental Attribution Error"?
Social scientists who study the reasons people act the way they do have discovered something fundamental about the way we explain to ourselves the behavior of others. What researchers have found is that whenever someone else's behavior causes us harm, we tend to assume that person intended to cause us the harm we experience or, at a minimum, caused us harm by virtue of their carelessness in regard to our well-being.
If our spouse arrives home late on the evening we've scheduled an outing with our friends, we'll reflexively blame their tardy arrival upon their desire to thwart our plans or their careless planning. Our spouse, on the other hand, will reflexively ascribe his late arrival to traffic conditions. Though both spouses might be at least partially right, the injured spouse will almost always ascribe her harm to her husband's intentional or careless conduct and the injury-causing spouse will almost always ascribe her harm to the traffic or the weather or an unexpected but necessary business obligation.
Why do we make this error in our dealings with others? Because we crave control. If we attribute the cause of our harm to the intentional or careless conduct of the person who harmed us, there is some chance that we can convince them -- by way of "punishment" for their misdeeds -- not to do it again. If it's really not their fault, there is no way we can prevent a similar occurrence from taking place in the future.
So What Does FAE Have to Do With Settling IP Litigation?
First, FAE makes us angry, preventing us from thinking as clearly as possible.
Secondly, FAE prevents us from seeing "our own part" in the conflict at hand. This latter effect has been found by researchers to prevent athletes, for instance, from finding and addressing the causes of their substandard performance. Why? Because in ascribing their substandard performance to the fault of others, they fail to search for and find those causes over which they have actual control, i.e., the errors they are making that cause them to fail.
When Everyone is Able to Give Everyone Else the Benefit of the Doubt, Tension Eases and the Parties Can Work on Their Mutual Problem Collaboratively and Effectively.
Now that you know about fundamental attribution error, you can never again be quite so perfectly certain that your righteous indignation is justified. You might just be able to give your opponent the benefit of the doubt. He is not the malicious, cheating liar you believe him to be. And you are not the saint upon whom harm has been imposed without any fault of your own.
Most people are so certain that the conflict to be resolved is the other guy's fault that they can't even begin to see that resolving the dispute is a mutual problem that is best resolved by way of collaboration rather than further posturing, hiding evidence and "spinning" one's tale of loss, injury and innocence.
Because I could write an entire book on this subject, I think I'll just stop there and let you and your clients ponder it for a little while. It may sound ridiculous, but learning about FAE made all of my relationships much better almost immediately. I think understanding it might help my readers out as well.
For other law- and business-related blogs addressing FAE, click here, here, here, here and here.
