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How Judges Judge

Posted by Rick · February 23rd, 2008 · No Comments

Interesting article from the ABA Journal on how judges — like many other intelligent people — rely upon intuition to get things wrong.

The article focuses on trial judges, as opposed to the norm of studying appellate judges. That makes it interesting to many of us in and of itself. The most interesting part of the article focuses upon three questions — and how the judges in different areas of the country answered it.

The questions are posed in such a way that an “intuitively right” answer leaps to mind almost immediately. When judges got it wrong (which was scarily often), they usually did so because they relied upon their intuition. In answering the first question, which is deceptively quite easy to answer, more than 88% of those judges who got it wrong came up with the “intuitively correct” answer. The second question seems harder, which subconsciously clues the reader that intuition might not be a good way to go. In that case, more than 57% of the judges who got it wrong gave the “intuitively right” answer. And, on the last question — and this really scared me because the correct answer virtually screamed itself out to me — 85 out of 125 judges who got it wrong (68%) did so because they jumped to what the article said was the “intuitively right” answer. (As I indicated, another answer, which was the correct one, seemed “intuitively right” to me. So that any judge got it wrong worries me.)

Most interesting of all is that the judges who got things wrong by going with the intuitive answer were more likely to say that the question was easy. I guess one lesson to take away from this is that if a judge thinks the answer is “easy” and disagrees with you, you’re going to really have to work to explain why his intuitive response is wrong.
Another point of note: gender, age and political affiliation had nothing to do with whether the judges got it right or wrong on this. The mistakes were across the board.

The article explored the ways in which the seductiveness of the “intuitively right” answer shows up in court. More complicated problems, like intricate, rule-bound Fourth Amendment search and seizure analyses, tend to produce less of a tendency to rely upon an intuitive answer for many (*sigh* not all) judges. I would suspect this also means that careful exposition which closely and methodically draws the link between the facts and the law in suppression motions would be more likely to obtain a positive result than those which are conclusory in nature. On the other hand, “vivid fact patterns” (the phrase is from the article), upon which prosecutor’s not infrequently rely in criminal cases, have a tendency to provoke an “intuitive” response.

Finally — because if I keep going with this summary, you might as well read the article yourself (not that you shouldn’t; it’s just that you don’t need to do so, in effect, twice!) — the article looks at how we might overcome the tendency to intuition. Minimizing “spur of the moment” decisions, not surprisingly, is first on the list for how to overcome this tendency. Evidentiary issues tend to provoke the intuitive response and are often decided in the heat of trial; pre-trial motions on anticipated evidentiary issues can help. I’m not sure how we’d get trial judges to do this, but WRITTEN opinions provoke a more deliberative response. Asking for reasons can help.

As the article itself states in closing, “[C]ogent legal judgments call for deliberation. Justice depends on it.”

Categories: Law and Legal Issues

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