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The Progressive Lawyer: Decision-Making and the 'Metaphorical Bias Model'

BY Curtis J. Romanowski
February 29, 2016

Across the nation, by far the most common setting for deciding domestic relations cases is the bench trial, where the judge sits alone without a jury except in extraordinary circumstance; cases involving domestic torts, for example. In the final analysis, therefore, our judges are our audience. They are certainly more than a passive audience; they are participants in every sense.

That being said, the laws of evidence ' which must be adhered to ' do not, and cannot in their current form, insulate judges from the effects of the information they are exposed to. In considering how we can possibly deal with this reality, we must first reject the idea that thinking is a conscious, rational, linear, verbal process. It clearly is not.

What do all judges ' and every one of us, for that matter ' do without thinking? The answer is that we make decisions and form connections with other people. Most of the time, people have no idea why they are doing what they do ' so they try to make up something that makes sense. We don't do things for a reason. We do the thing decided. Then, we make up reasons about what we've already done. As John Lennon said, “Life is what happens to you while you are busy making other plans.” Well, so are decisions.

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