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Do Judges Really Think That Way? Do Judges Really Think That Way?

Do Judges Really Think That Way? - PowerPoint Presentation

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Do Judges Really Think That Way? - PPT Presentation

Chris Guthrie Dean John WadeKent Syverud Professor of Law Vanderbilt Law School chrisguthrievanderbiltedu Project Collaboration involving Jeff Rachlinski Cornell Law School and Andrew ID: 268919

problem judges answer intuitive judges problem intuitive answer amp 000 version evidence award crt making correct patch group ball

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Slide1

Do Judges Really Think That Way?

Chris Guthrie

Dean

John Wade-Kent Syverud Professor of Law

Vanderbilt Law School

chris.guthrie@vanderbilt.eduSlide2

Project

Collaboration involving:

Jeff Rachlinski, Cornell Law School; and

Andrew

Wistrich

, Central District of California

Goal:

To explore how trial judges judge

Method:

Experimental – mostly “between-group” studies

Data:

responses to

hypotheticals

from thousands of federal and state trial judges, bankruptcy judges, and ALJsSlide3

Judges and Judging

Ordinary courts in U.S. resolve 35 million cases a year

98% by trial courts

Judges (30,000+) are the key actors

Judges preside

Many more bench trials than jury trials

Many more decisions on motion than trials

Judges play a role in many settlements

Dominant academic accounts of judging:

Formalist

RealistSlide4

“Pure” Formalist Model

“Pure formalists view the judicial system as if it were a giant syllogism machine with a determinate, externally-mandated legal rule supplying the major premise, and objectively ‘true’ pre-existing facts providing the minor premise. The judge’s job is to act as a highly skilled mechanic….”

- Burt Neuborne (1992)Slide5

“Pure” Realist Model

“[T]he judge really decides by feeling, and not by judgment; by ‘hunching’ and not by [reason] . . . [T]he astute judge, having so decided, enlists his every faculty and belabors his laggard mind, not only to justify that intuition to himself, but to make it pass muster . . .”

- Joseph Hutcheson (1929)Slide6

The Intuitive-Override Model

Dual Process Model

Intuitive & Deliberative

Trial judges rely heavily on intuition but can, and sometimes do, override with deliberation

Stimulus

 Intuitive Response  Override?

Evidence:

Cognitive Reflection Test

Judicial Decision Making studies

“Heuristics & Biases”

Deliberately DisregardingSlide7

Cognitive Reflection TestSlide8

Cognitive Reflection Test

Three items

Each has intuitive, but

inaccurate

, answer

Correct answer is easy,

if

respondent uses deliberative, rational process

Thus, CRT designed to compare “intuitive” and “deliberative” thought processesSlide9

CRT Item #1

A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?Slide10

Item #1 Answer

A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?

Wrong, but intuitive, answer =

10 cents

But if the ball costs 10 cents, this means the bat costs $1.10, and the total cost would equal $1.20, not $1.10 as specified

Correct answer =

5 cents

i.e., Ball = 5 cents

i.e., Bat = $1.05

Total = $1.10Slide11

CRT Item #2

If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?Slide12

Item #2 Answer

If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?

Wrong, but intuitive, answer =

100 minutes

But if there are 20 times as many machines (i.e., 100), they should produce 20 times as many widgets (i.e., 100) in the

same period of time

(i.e., 1 per every five minutes)

Correct answer =

5 minutesSlide13

CRT Item #3

In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?Slide14

Item #3 Answer

In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?

Wrong, but intuitive, answer =

24 days

But if the lake is half covered in 24 days, and then doubles, it will be fully covered in 25 (rather than 48) days.

Correct answer =

47 daysSlide15

CRT Results

Average Scores

MIT students 2.18

Harvard students 1.43

ALJs 1.33

Florida state judges 1.23

Michigan students 1.13

Web-based participants 1.10

Michigan State students 0.79

Toledo students 0.57Slide16

CRT Results

Judges

Sample size 252

Average score 1.23

%age 0 correct 30.6

%age 1 correct 31.1

%age 2 correct 23.8

%age 3 correct 14.7Slide17

CRT Results

Judges

(cont’d)

If wrong,

Question

% right

% selecting intuitive

#1 28 97

#2 44 57

#3 50 70Slide18

CRT:

Basic Findings

Even though the questions are easy, most judges get most of them wrong

The wrong answer most commonly chosen tends to be the intuitive one

Those who get a problem wrong tend to think it is an easier problem than those who get it right

But some people (including 1/7

th

of the judges) overcome their intuitive responses

Slide19

Judicial Decision Making StudiesSlide20

Heuristics & Biases

Cognitive shortcuts or intuitive “rules of thumb”

Operate quickly and unconsciously

Often produce good outcomes, but can lead to systematic and predictable errors (“cognitive illusions”)

e.g., anchoring, framing, hindsight biasSlide21

Anchoring

Estimates tend to be biased toward the first number we encounterSlide22

Anchoring Problem #1

Facts

P

is a 31-year-old teacher and father

D

is a package-delivery company

P

loses his arm and breaks three ribs in auto accident – pain, work problems, recreational limitations

D

concedes liability and economic damages, but contests pain and suffering damages

Unsuccessful settlement conference

Experimental group judges only:

Plaintiff’s lawyer demands $10 million to settle

Question

– What pain and suffering damages will you award?Slide23

Anchoring Problem #1

Results

Mean

Award

Median

Award

Control

$808,000

$700,000

Anchor

$2,210,000

$1,000,000Slide24

Anchoring Problem #2

Facts

Employment discrimination case

P

was subjected to racially/ethnically offensive conduct; complained; and was fired

P

provides credible evidence of “anxiety, sleeplessness, and bad dreams”

D

concedes liability but contests compensatory damages for “mental anguish”

Control Group

P

saw a Court TV program where victim received award

Anchor Group

P

saw a Court TV program where victim received $215,000 award

Question

– What mental anguish damages will you award?Slide25

Anchoring Problem #2

Results

Mean

Award

Median

Award

Control

$35,000

$6,000

Anchor

$58,000

$50,000Slide26

Framing/Loss Aversion

We tend to perceive numeric options as “gains” or “losses”

Losses are more unattractive than gains are attractive

The same outcome seems much more unfair if it appears to be a loss rather than a gainSlide27

Profit and Pay

Kahneman

,

Knetsch

&

Thaler

(1986)

Facts & Results

A company is making a small profit during a recession and period of high unemployment.

“Gain” version – The company increases wages 5% in a 12% inflation environment

“Loss” version – Company decreases wages 7% in a no-inflation environment

Is this fair?

“Gain” version – 78% fair

“Loss” version – 38% fairSlide28

Landlord-Tenant Case (ALJs)

Facts & Results

Landlord files claim against tenant for failure to pay rent

“Gain”/Discount – $2100 rent and $50 discount for tenant if he pays cash (from $2100 to $2050)

“Loss”/Surcharge – $2000 rent and $50 surcharge for tenant if he pays credit card (from $2000 to $2050)

Is this fair?

“Gain”/Discount version – 95% fair

“Loss”/Surcharge version – 52% fairSlide29

Hindsight Bias

People overestimate the predictability of events that have already occurred

a.k.a. “20/20 hindsight” or “Monday morning quarterbacking

”Slide30

Hindsight Bias/Juries

Kamin

&

Rachlinski

(1995)

Subjects receive identical information about the likelihood of a flood causing damage

Foresight group

(i.e., pre-accident)

– Should

D

take a precaution? (24

% said “yes”)

Hindsight group (i.e., post-accident)

– Was

D

negligent for not taking the precaution? (57

% said “yes”)Slide31

Hindsight Bias & Judging Problem (ALJs)

Facts & Results

Five kids making trouble in a toy store

Guard tracks one African-American kid

and thinks he sees him shoplift

Guard arrests the kid, perhaps using racial slurs

Two versions:

Innocent version

– No shoplifting

Guilty version

– Shoplifting

Was the arrest racially motivated?

Innocent version

– 68% yes

Guilty version

– 29% yesSlide32

“Difficulty Disregarding”

Difficult to ignore relevant but inadmissible evidence

Many mock jury studies support thisSlide33

Difficulty Disregarding Problem #1

Anchoring Problem #1 from Above

Pain and suffering award influenced by $10 million demand made during settlement conference

Under FRE 408, this is inadmissibleSlide34

Difficulty Disregarding Problem #2

Landsman &

Rakos

(1994)

Facts

While attempting to burn leaves,

P

is burned due to “flashback” from gasoline container.

P

sues

D

manufacturer, claiming that the container was defective because it did not have a “flame arrester”

D

claims that “flame arrester” would not have prevented injury

Experimental group judges only:

P

seeks to introduce evidence of a “subsequent remedial measure” taken by

D

– a warning and recall letter re: the possibility of fire flashback. The prior judge who heard the motion suppressed the evidence under Rule 407.

Question – Will you rule for

P

or

D

?Slide35

Difficulty Disregarding Problem #2

Landsman &

Rakos

(1994)

Results

%age ruling for

P

Control (28)

0%

Experimental (28)

25%Slide36

Difficulty Disregarding Problem #3

Facts

Criminal prosecution of date rape at fraternity party; jury trial waived

Only issue is whether victim consented

Defendant testified she did, but

victim

denied it

Evidence corroborating lack of consent (bruising, rapid reporting, emotional distress)

Experimental

group only

– Defendant

seeks to introduce testimony about victim’s sexual

promiscuity. Will you admit evidence?

Question

– Will you convict?Slide37

Difficulty Disregarding Problem #3

Results

%age convicting

Control

49%

Experimental (sexual history but excluded)

20%Slide38

Judicial Decision Making Problems:

Basic Findings

Most judges are influenced by heuristics that induce intuitive responses and are unable to disregard relevant but inadmissible evidence

Slide39

Litigators?

If you want intuitive thinking, seek rapid

decisions;

if you want deliberative thinking

, seek the opposite

Use anchors

To make desired options more appealing, frame

Think carefully about managing settlement negotiations in front of a decision-making judge

Try to introduce probative

but

potentially inadmissible evidence

Consider potential

advantages

of juriesSlide40

Reforms?

Accuracy critical, but benefits of enhanced accuracy must be balanced against costs

Time?

e.g., Docket reductions

e.g., motions in

limine

versus at trial

Training/feedback?

More frequent opinion writing?

Divided decision making?

e.g., “managerial” judge vs. “trial” judge

Group decision making?

e.g., juries vs. judges; panels vs. individuals