The anecdote is the exception, not the example

Construction lawyers would be best placed grounding advice on rigorous data and facts, rather than specific, memorable examples, writes Samuel J Woff

A “world gone mad”

When famed Antarctic explorer Sir Ernest Shackleton and two companions emerged from the icy wilderness at a South Georgian whaling station in April 1916, he had some catching up to do. The world had been at war for the better part of two years, and they had heard nothing of its horrors.

His memoirs record his initial impressions on being debriefed by the Norwegian whaling station captain, a Mr Storlle:

We listened avidly to his account of the war and all that had happened while we were out of the world of men. We were like men arisen from the dead to a world gone mad…[a world of] of unimagined slaughter. The reader may not realise quite how difficult it was for us to envisage nearly two years of the most stupendous war of history. The locking the armies in the trenches, the sinking of the Lusitania, the murder of Nurse Cavell, the submarine warfare, the Gallipoli campaign, the hundreds of other incidents of the war, almost stunned us at first.

The extent of Sir Ernest’s staggerment is understandable, much as someone who fell into a coma in December 2019 and woke in May 2020 might feel on being told of the then present state of the pandemic. But what is fascinating about his account is that aside from a vague, poetic reference to widespread slaughter, he makes actual reference to only one single death, that is, the shooting of a British Nurse by occupying German force in Belgium. The millions (yes, millions) of soldiers and civilians who had also perished at that point of the war, of which he was presumably told, warranted no specific mention in his diary for posterity, instead the focus is on single, highly upsetting murder.

Sir Ernest’s fixation on this highly emotive example is understandable, human and common. We more readily recall and relate to specific, emotive anecdotes (stories) then we do to numbers and statistics. The murdered nurse displaces millions of perished soldiers. However, whilst understandable and human, it is is apt to lead to an erroneous distortion of our perception of reality. The true picture of World War One is not one of murdered nurses, but one of concentrated and industrialised killing between rival European factions, resulting in the death of between 15 to 22 million people.

Yet because these nameless victims have no face, name or story we vaguely wash over them in our minds, and instead World War One becomes centred on the story of how a single British nurse was shot. In this way the “true” story of World War One is lost to our perceptions.

The distorting anecdote

This may do no harm if having a realistic perception of the world is unimportant. But this is not true for construction litigators, and therefore we must be on guard against this “anecdotal bias”. Our clients rely upon us to feed them advice about the true (not distorted) nature of construction law so that they can make an informed decision about how to proceed. However, far too frequently, we make Sir Ernest’s mistake of focusing on the memorable story, not the numbers.

For instance, every construction lawyer is familiar with Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd. It’s a good story. Memorable. In that case a builder was late finishing a project but was excused for its delay because the owner had, in part, caused the delay. It was a great win for the builder and a triumph for the lawyers involved.

Since that time however, whilst a similar argument is frequently invoked by builders in litigation (the so called “prevention principle”, to give its technical name), I am not aware of it having a consistent and resounding measure of success. Yet builders, and their advisers, continue to commit time and energy to crafting arguments based on the “prevention principle” despite a statistically limited chance it has of prevailing.

This is not sensible. Rather than fixating on the story (“the one time in the 1970s this argument was successful”), advisers would be better served by looking at the statistical data of how successful this argument has been since. Doing so would reveal that rather than Peak Construction being an example of how frequently the argument prevails, it is instead an exception against the general trend of the norm. Indeed, it is the very fact that it is an exception which makes it memorable.

Our obligation

It therefore behoves us all as construction lawyers, when advising a client on how to proceed, to ask the following: “Am I basing this recommendation on data or a memorable anecdote?” Am I recalling an “example or an exception?” If it’s the former, the recommendation is more likely to be congruent with the actual state of reality. If the later, we have fallen into the trap of perceiving a distorted version of the world, and done our clients a disservice.

Sir Ernest gets a pass for this mistake owing to the fact he had just emerged from two years of icy isolation. However, as responsible professionals in temperature controlled offices, we do not.

About the author

Samuel J Woff is a commercial construction lawyer and construction litigation specialist, speaker and published author. He has broad experience across a range of construction litigation matters including domestic and international arbitrations, litigation in the Victorian Supreme Court and security of payment adjudications.

Copyright 2023 Samuel J Woff