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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section Council

June 2016, vol. 46, no. 9

Lawyers can benefit from judicial heuristics

“Heuristics” are cognitive shortcuts, or rules of thumb, by which people generate judgments and make decisions without having to consider all the relevant information, relying instead on a limited set of cues that aid their decision making.1 This article will explore different heuristics and types of thinking, and show how attorneys can use knowledge of heuristics to assist their clients.

System 1 and System 2

Studies have posited processes of thinking that have been labeled “System 1” and “System 2.” System 1 processes are those in which thinking, judgment, and choice are more intuitive, experiential, and adaptive. They are also much faster and require fewer cognitive resources to complete. System 2 processes, however, are more analytic, relying on facts and normative rules and requiring many more cognitive resources which may not always be available.2

Both processes have their place, and neither should be deemed superior for every situation as there are times in life where analytics are less desirable than experience and intuition. For example: A person crossing a street in a crosswalk hears a horn and looks up to see a large truck barreling out of control right toward her. The System 1 process tells that person to jump out of the way to avoid being hit by the truck. The System 2 process would look at the truck, try to determine the truck’s speed to see if there is a need to do anything other than continue walking, take into consideration whether other cars would block the path of the truck before reaching the crosswalk, etc. In other words, the System 1 processor would likely be safe, while the System 2 processor would likely become a pancake on the road before completing the analysis.

As a lawyer, the question becomes whether we want our judges to use only System 2 processes? It certainly seems likely that analytics would be desired above instinct and intuition. In fact, I attended a conference on judicial decision-making in 2015, and one of the seminars compared judges that used System 1 and System 2 processes, but the clear implication of the seminar was that judges who use System 1 processes were inferior to judges that use System 2. While analytical thoughts appear to be superior to “shooting from the hip,” a better question is whether judges are even in situations where System 2 processes are always available?

Is a judge who is presiding over a jury trial able to use System 2 processes throughout the proceeding? Imagine what would happen if an objection were raised during testimony, and the judge required counsel on both sides to present arguments about why their respective positions were the correct ones, and then took time to consider both arguments and perhaps even conducted some independent legal research in order to make a ruling. During these few hours, the jury has been excused, the trial has been extended for another day, and a one-week trial is suddenly converted into a one-month trial. Simply put, System 2 processes are not generally available to judges in the middle of a trial and the notion that a judge is somehow inferior because the judge does what the judge should do – make a ruling – is simply not appropriate.

On the other hand, what would happen if a judge were hearing pre-trial motions in a case where the motions were fully briefed by both sides, but the judge ignored the briefs and made a ruling based solely on a “gut reaction” as to who should prevail? This would be a System 1 approach to judicial decision-making, and is clearly not the preferred method desired by attorneys appearing before the court.

The notion that System 2 decision-making is the preferred process for all such decisions is false because trial judges do not always have the luxury of fully-briefed motions or time to consider matters, and must make on-the-spot rulings based on their knowledge and experience.

Knowing this, how can a lawyer help her client? The answer is simple: take System 1 decision-making out of the equation whenever possible.

Briefs

A simple way to ensure that System 2 decision-making can occur is to brief an argument whenever possible. Oral motions should be disfavored, and written motions should be presented to the court with courtesy copies given sufficiently in advance to allow the judge whatever time is needed to review the motion and consider the proper ruling. By allowing a judge time to consider a matter, rather than making an oral motion with no notice to the court, the lawyer is actively choosing System 2 decision-making over System 1. Pre-trial motions, unless trial strategy dictates otherwise, should be used to allow the court to make System 2 decisions on important issues before the trial so as to avoid the quick System 1 decisions that a court must make in the middle of a trial.

Biases

Biases always play a part in even the most balanced and shrewd person. It is a natural inclination that everyone has, but it is something that trial judges do their best to put aside. Justice is supposed to be blind, so there is no reason that any lawyer should do anything that would make a jurist peek from under the blindfold. Biases are also a part of System 1 decision-making, so lawyers need to avoid putting courts into situations where System 1 decisions are made and one way for a lawyer to do this is to avoid creating a negative bias before the court.

For example, judges generally have good memories and will remember if an attorney has been less than one-hundred percent truthful with them. That could create a bias and make the judge question a lawyer’s argument before it is even made.

Another way to avoid bias is by being on-time and well-prepared for court. Aggravating a judge by arriving to court late certainly leaves a bad impression. Being ill-prepared and unable to answer simple questions about a case is another way to sway someone against your position. In addition, telling a judge “this is not my case,” does little to elevate a lawyer’s status and is simply not an excuse that a judge will accept; if you are appearing on a case, you need to be able to speak intelligently on it. If you are appearing in court for another attorney in your firm, you need to make sure that you are sufficiently versed in the details of the case to provide whatever information a judge may seek.

Presentation

How an attorney presents himself in court is also important. A few months ago, I attended a lecture by someone that I was told was a professional, world-renowned speaker. I met the speaker before the lecture and was taken aback by the fact that his sport coat was badly wrinkled, his hair was a bit unkempt, and he appeared generally disheveled. My initial reaction to this was that I had been sold a bill of goods and that this speaker could not be as engaging as advertised. It took most of the lecture, but upon hearing this speaker I realized that my initial reaction and bias against him was unfounded because he was excellent. Judges do not often have the time to listen to lawyers discuss matters for an hour in order to determine their worth as an advocate and must make decisions quickly. For this reason, it is important for every lawyer to always appear professional and her or his best.

By engaging in these simple behaviors (be truthful, on-time, well-prepared and appearing professional), a lawyer avoids the possibility of a judge forming a bias against her or him. This will avoid the negative impact of such biases and allow the court the freedom to rule without having to consciously set-aside these natural inclinations.

Both System 1 and System 2 decision-making have their places in the world of a trial judge. System 2 is the preferred decision-making method, but a trial judge must often make quick rulings, especially during trials. In order to represent the client in the best manner, a lawyer should do all that is possible to avoid heuristic biases and place arguments in a way that allows for System 2 decisions to be made.


The author is not a psychologist. This topic is of interest to me and made me consider what attorneys should know about heuristics and how this knowledge can be applied for the benefit of their clients.

 

1. Eyal Peer & Eyal Gamliel, Heuristics and Biases in Judicial Decisions, Court Review, Vol. 49, Iss. 2 (2013).

2. Id.