Do Judges Really Think That Way?

Chris GuthrieDeanJohn Wade-Kent Syverud Professor of LawVanderbilt Law Schoolchris.guthrie@vanderbilt.edu

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 ALJs

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 Realist

“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)

“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)

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 Disregarding

Cognitive Reflection Test

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 processes

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?

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 = $1.10

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?

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 minutes

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?

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 days

CRT ResultsAverage Scores

MIT students 2.18Harvard students 1.43ALJs 1.33Florida state judges 1.23Michigan students 1.13Web-based participants 1.10Michigan State students 0.79Toledo students 0.57

CRT ResultsJudges

Sample size 252Average score 1.23%age 0 correct 30.6%age 1 correct 31.1%age 2 correct 23.8%age 3 correct 14.7

CRT Results Judges (cont’d)

If wrong, Question % right % selecting intuitive#1 28 97#2 44 57#3 50 70

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 1/7th of the judges) overcome their intuitive responses

Judicial Decision Making Studies

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 bias

Anchoring

Estimates tend to be biased toward the first number we encounter

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?

Anchoring Problem #1Results

MeanAward

MedianAward

Control $808,000 $700,000Anchor $2,210,000 $1,000,000

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?

Anchoring Problem #2 Results

MeanAward

MedianAward

Control $35,000 $6,000Anchor $58,000 $50,000

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 gain

Profit and PayKahneman, 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% fair

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% fair

Hindsight Bias

People overestimate the predictability of events that have already occurred a.k.a. “20/20 hindsight” or “Monday morning

quarterbacking”

Hindsight Bias/JuriesKamin & 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”)

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% yes

“Difficulty Disregarding”

Difficult to ignore relevant but inadmissible evidence Many mock jury studies support this

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 inadmissible

Difficulty Disregarding Problem #2Landsman & 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?

Difficulty Disregarding Problem #2Landsman & Rakos (1994)

Results

%age ruling for PControl (28) 0%Experimental (28) 25%

Difficulty Disregarding Problem #3Facts

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?

Difficulty Disregarding Problem #3Results

%age convicting

Control 49%Experimental (sexual history but excluded)

20%

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

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 juries

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