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

Four Steps

Science has taught us over the last 80 to 110 years about how we, as human beings, make decisions as part of a four-step sequential process. First, we perceive. A message is received which cannot possibly be entirely divorced from the messenger. Ourselves, our adversaries, and any witnesses or other declarants are never not the message.

Next, we reference what we have perceived at an insanely fast rate ' over 100 million bits per second ' and this occurs entirely outside of consciousness. This figure represents roughly half the number of synapses that cross the corpus callosum every second. The rest of the brain's capacity is used to keep the body going. Of all of those bits, only somewhere between five and nine conscious bits per second are processed at the conscious level. See George A. Miller, The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, Psychol. Rev., Vol. 63(2), Mar. 1956, 81-97.

More recent research has concluded that these conscious bits are actually bundled in chunks ' where the chunks are perceived as a whole individually ' redefining the count to about three conscious chunks per second. So, our entire lifetime of experiences ' along with experiences that we have observed other people having, including on TV and in the movies ' gets referenced at this blinding rate of speed, and all of these chunks of experience we have amassed over our lifetimes are just waiting to make meaning out of what we perceive. As part of the reference sort, our brains conduct “difference sorts” and “similarity sorts,” and then assign a “meaning.”

Third, we feel; we have feelings. This is a binary system. We are talking about a sensation generated at the secondary nervous system, down the spinal cord and out to the extremities. It is not an emotional reaction, but rather a sensation; a binary sensation. Aroused or not aroused; fight or flight; quiescent or relaxed.

Finally, we react. We're surprised, we're angry, sad, happy, whatever. Interestingly, if we want to maximize feelings of anger in the recipient of the communication, we need to maximize their surprise first. Think about it.

What all four of these steps have in common is that we have absolutely no conscious access. We might notice a sensation, but that's about it. To illustrate, think of a word ' but not until you know what the word is going to be first. Decisions are more realized than they are made in the traditional sense. We all of a sudden notice that we have a leaning; we've reacted a certain way. We've reached the middle, maybe the end of, the other-than-conscious process. Only then do we start making up the reasons why the leaning we have is actually a good idea.

Changing Course

All decision-making happens in every mind outside conscious reach and direction first, then the conscious mind comes in and starts putting in the rationale. While we can sometimes talk ourselves out of an emotional reaction, we can't tell ourselves not to have one first.

The rational mind ' thank God for it ' can talk us out of the tyranny of just blindly following the emotional reactions that we happen to have rehearsed over our entire lifetimes ' just because of random reinforcement, or where we grew up, or what we saw on TV. But you cannot tell yourself not to have the initial unconsciously-driven reaction. You can only mediate it or mitigate it after the fact. And if you're lucky, you can get pretty close. If you pay very close attention to the way your head works, you can stop it before it gets going too far.

The Facts of Law

• Fact: all functional human beings are biased.
• Fact: all judges are functional human beings.
• Therefore: all judges are subject to bias.

This construct is a “Categorical Syllogism.” It represents the structure of deductive reasoning, giving us an absolute truth as the product. Each and every judge we will ever appear before, therefore, will be subject to the same initial unconscious four-step thought processes that we all are; and along with that ' due largely to the reference process ' subject to initial bias. The esteemed judicial personage, Learned Hand, has said of the limiting instruction that it imposes upon the jury “a mental gymnastic which is beyond, not only their powers, but anybody else's.” Nash v. United States, 54 F.2d 1006 (2nd Circ. 1932). This is naturally exacerbated when our judges are exposed to unreliable hearsay testimony and to other objectionable evidence.

A quarter century later, Hand referred to such an instruction as a “placebo” because it does “violence to all our habitual ways of thinking.” Delli Paoli v. United States, 229 F.2d 319 (2nd Circ. 1956). Assuming that Judge Hand would include judges in the realm of “anybody else,” the notion of limiting the use to which evidence is put is equally specious in bench trials, as in jury cases.

We are not just concerned about the judges being exposed to this at trial; we are concerned that the judge trying the case in many cases has been exposed to this sort of unreliable evidence during motion practice, during case management and status conferences, and worse, I think, during intensive settlement conferences. It is like having a jury impaneled throughout the entire pendency of the case.

There was a study published in the University of Pennsylvania Law Review investigating the ability of judges to filter out biases. See Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. Pa. L. Rev. 1251, 1292 (2005). The case put to the judges was as follows: The Plaintiff in a products liability lawsuit lost an arm. A motion in limine was filed with each of the volunteer subject judges, requesting that the fact that the man served 10 years in the penitentiary for having committed a felony be removed from consideration at the bench trial. Query: Once the judges hear it, can they really un-ring the bell?

One would think that the judges would call upon their judicial temperament to handle this in a rational, systematic way, and filter out the felony. However, the study was overwhelmingly conclusive: The judges who knew about the felony awarded 30% less in damages. People are not fully aware of their own biases; that includes parties, expert witnesses and even judges.

The Metaphorical Bias Model

I would next like to discuss a concept that I developed back in 2010, which I am calling the “Metaphorical Bias Model.” It's metaphorical in that it is not premised on any one judge at any particular time actually having one or more of the biases appearing on the following non-exhaustive list: 1. Suspicion; 2. Personal responsibility; 3. Victimization; 4. Random occurrence; 5. Anti-status biases; 6. Bias toward unsanctioned presumptions; 7. Bias arising from pendente lite impressions/determinations; and 8. Miscellaneous biases.

The model is intended as a metaphorical target to be dealt with by employing a number of socio-psychological and neuropsychological principles to address even the possibility of the presence of any such issues. The biases called out in this non-exhaustive list can be appropriately referred to as “untried issues.”

The first is “suspicion” ' suspicion of a party or an attorney or both. Or suspicion as to honesty, reliability, reasonableness, hidden agendas, motives, vindictiveness, etc., or all of the above.

Next comes “personal responsibility”: In other words, to what extent should a party be held accountable for their current situation, based upon their having exercised more or a different level or kind of personal responsibility? Consider the following examples:

• Would the wife have been in less economic need had she applied herself more to seeking gainful employment?
• Would the husband have been in a better position to pay had he not made certain risky business decisions, which ended up not panning out well?
• Should investment moneys have been placed in T bonds instead of in more volatile securities?
• Should a victim of abuse have cut off the abuse earlier than he or she did?

The judge then worries, from his or her own perspective, about “victimization” ' concern that word will get around that the judge routinely does this or that; that the judge might be reversed on appeal; a feeling that one or both of the parties, or that a party's attorney, might be trying to put something over on the judge.

As to “random occurrences,” there is a broad-based resistance to hearing or considering anything that may very well be significant ' or, at the very least, significant when assessed cumulatively over time ' where the issue or evidence advanced is not earth-shatteringly momentous. This type of bias results in shrugging off, as irrelevant or immaterial, certain proofs or arguments that do not arise to a certain higher than normal threshold. Another way of looking at this is that it's essentially related to problems with the burden of persuasion. There are certain judges who are likely to demand a greater level of proof or persuasion than the law actually requires; a level greater than we, as trial lawyer, could ever show. You might find yourself tipped-off to this sort of thing when you file a pendente lite motion with a fair amount of supporting evidence, and the judge denies your request, wanting more information. If the request was important and reasonable, and the supporting proofs were significant ' and perhaps the best that could be provided at that time ' that denial may or may not indicate a resistance to communication, at least on that issue.

Next, we come to “anti-status biases.” We all hear about various judges' predilections, often through typical court house gossip. “Who's your judge? ' And you represent the father? Good luck with that one.” That sort of thing. Other anti-status biases might include a pro- or anti-supporter bias, or an anti-marital-fault-perpetrator bias.

Then there is the “bias toward unsanctioned presumptions.” This bias arises from entertaining faux presumptions that are not part of our law and, in some cases, specifically prohibited by it. This rule-of-thumb mode of fallacious analysis essentially reduces certain thinking problems to a pat set of mechanical calculations, unsupported assumptions or per se rules. Consider these examples:

50/50 equitable distribution when not in a community property jurisdiction, or in other jurisdictions where there is not a rebuttable presumption of equal property distribution;

Joint legal custody in jurisdictions where there is no such presumption; and

Alimony calculation heuristics in states where mathematical or tabular alimony calculations are not permitted; New Jersey, for example.

“Bias arising from pendente lite impressions/determinations” ' largely priming biases ' and the “miscellaneous biases” (the catch-all category) round out the list. “Like the rest of us, [judges] use heuristics that can produce systematic errors in judgment.” Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, 821 (2001). Judges are also members of a larger class of professionals, which class demonstrates a very well-studied tendency to overestimate their ability to size-up a particular situation. Tendencies also include exaggeration of their own overall cognitive abilities; their command of professional skills, generally, and as compared to their competitors; and the reliability of their own judgments. See, e.g., Colin Camerer & Dan Lovallo, Overconfidence and Excess Entry: An Experimental Approach, 89 Am. Econ. Rev. 306, 311 (1999). This overestimation of abilities on the part of some judges can feed into their belief that they do not need the evidence rules, whether exclusionary or inclusionary. Paradoxically, some of the thinking problems targeted by exclusionary rules may be quite resistant to the sort of self-correction many judges feel they are able to effectively accomplish. For example, while some of the heuristics and biases research concludes that bias awareness can eliminate some biases, it also shows that other biases are very much resistant to awareness-based methods. See, e.g., Timothy Wilson et al., A New Look at Anchoring Effects: Basic Anchoring and its Antecedents, 4 J. Experimental Psychol.: Gen . 387, 397 (1996).

Curtis J. Romanowski, a member of this newsletter's Board of Editors, is co-author of “New Jersey Family Law” (Gann 2014). He is the principal and founder of Romanowski Law Offices in Metuchen and Freehold, NJ.