One obvious challenge for those of us making a living in Florida’s overworked and underfunded court system, is how do you help your judge make the best decisions possible under pressure-cooker conditions? For example, as I reported here, in Miami-Dade each of our probate judges was assigned an average of 3,069 new cases in FY 2013-14, and in Broward the figure was even higher at 3,899/judge. And as caseloads go up, court funding goes down, depriving our judges of the support most of us in private practice take for granted. The best strategies I’ve found for dealing with this particular challenge are summarized beautifully in Persuading a Cold Judge, a 2009 article published in the ABA’s Litigation magazine which I refer to all the time (and wrote about here).
Another fundamentally important issue to deal with in bench trials, which is less obvious but equally outcome determinative, are the unconscious biases that drive much of our decision making as human beings. Most studies investigating this kind of bias focus on the general public (which I’ve reported on here in the context of settlement negotiations). We now have research focusing specifically on judges, as reported in Are Juries Really Such a Wildcard Compared with Judges? Here’s an excerpt:
[A] growing body of research supports what many of us have always known—judges are people, too, and are subject to many of the same unconscious influences and decision-making shortcuts as jurors. Regardless of background, education, and occupation, we are all remarkably bad at understanding what influences us when we make decisions. . . . We think we know why we made certain decisions and what we relied on when doing so, but we often discount factors that had a larger impact on us than we thought. Judges are not immune to this either. Pertinent research on judicial decision making indicates that biases and errors occur both unconsciously and unintentionally.
When was your judge’s last snack break?
If you’re trying to schedule a contested hearing on a discrete issue (vs. a full blown trial), something as simple as when you get your hearing can have a huge impact on your chances of success. For example, this study found that the percentage of a judge’s favorable rulings appears directly linked to when she or he last ate. Here’s an excerpt from that study:
We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break.
Yes, judges are people too; so what’s to be done?
First, understand the problem. We’re not talking about intentional bias here. What we’re talking about are the factors affecting decision making that most of us are simply unaware of. The linked-to article does a good job of identifying the typical unconscious biases we’ll encounter in a courtroom. Yes, “who” your judge is matters (i.e., race, gender and background), but “how” his or her brain works is just as important. Our brains use a number of mental shortcuts, or “cognitive heuristics,” that help us make decisions more quickly and efficiently by operating in a matter of milliseconds, without our realizing that it is happening. Understanding how these mental shortcuts work, and what you need to do to make sure they’re working in a way that helps your judge do the best job possible, is crucial.
Second, be proactive, take steps to neutralize unconscious biases that hinder a judge from making thoughtful, well-reasoned decisions. The linked-to article provides a solid list of compensating strategies; here are my favorites:
Because external accountability can . . . increase deliberative processing, call attention to the fact that the decision will draw scrutiny, for example, through . . . appellate review. While risky, it could be effective if handled delicately.
On a more strategic level, use a narrative to tell a story in briefs, in opening statements, and through witness testimony. Having judges consider alternative explanations leads to more deliberative analysis, and simply attacking the adverse party’s story does not provide that alternative. Provide your own story that includes an alternative cause, motive, narrative, etc., so the judge has to consider both versions rather than just the strengths and weaknesses of only one.
An assessment of the judge’s inclination to tackle complex information can also help guide the complexity of the presentation. A judge who exhibits an inclination to make sure he or she understands complex evidence will inherently be more likely to make more deliberative decisions. However, if a judge is more prone to quick decisions, then counsel should make extra use of tools like simple visuals, decision trees, and tag lines to create a less effortful path to a favorable decision.
Bottom line, judges are people too. Understanding how they make decisions is crucially important in cases such as ours, where the same person is both judge and jury.