Do Judges Really Think That Way?

1. Do Judges Really Think That Way? Chris Guthrie Dean John Wade-Kent Syverud Professor of Law Vanderbilt Law School chris.guthrie@vanderbilt.edu

2. 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

3. 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

4. “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)

5. “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)

6. 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

7. Cognitive Reflection Test

8. 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

9. 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?

10. 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

11. 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?

12. 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

13. 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?

14. 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

15. CRT ResultsAverage 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 0.57

16. CRT ResultsJudges 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 14.7

17. CRT Results Judges(cont’d) If wrong, Question% right% selecting intuitive #1 28 97 #2 44 57 #3 50 70

18. 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

19. Judicial Decision Making Studies

20. 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

21. Anchoring Estimates tend to be biased toward the first number we encounter

22. 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?

23. Anchoring Problem #1Results

24. 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?

25. Anchoring Problem #2 Results

26. 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

27. 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

28. 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

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

30. 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”)

31. Hindsight Bias & Judging Problem (ALJs)Facts & Results • Five kids making trouble in a toy store • Guard tracks one African-American kidand 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

32. “Difficulty Disregarding” • Difficult to ignore relevant but inadmissible evidence • Many mock jury studies support this

33. 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

34. 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” • Dclaims 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?

35. Difficulty Disregarding Problem #2Landsman & Rakos (1994) Results

36. 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?

37. Difficulty Disregarding Problem #3Results

38. 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

39. 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

40. 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