Key Procedural Justice Principles and Their Impact on Judicial Decision-Making

International Journal For Court Administration February 2013 1 Key ProceduralJustice Principles VoiceLitigants have the opportunity to participate in the process and offer their perspective NeutralityLitigants believe the judge is neutral makes decisions based on rules rather than opinions and applies rules consistently Respectful treatmentLitigants are treated with dignity and feel their problems are taken seriously TrustLitigants perceive the judge is sincere and caring Reflexive processesLike blinking in bright sunlight these reflexive processes are automatic rapid and unconscious Reflective processesLike solving a math problem reflective processes are deliberative slow and conscious Minding the Court Enhancing the DecisionMaking Process By Pamela Casey Kevin Burke and Steve Leben1 1 Introduction A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions This research has great potential significance for judges who spend much of their time making decisions of great importance to others For most judges this research literature is not part of their judicial education This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes It builds on a 2007 American Judges Association paper that encouraged judges to incorporate the principles of procedural justice see side bar to help ensure a decision making process deemed fair by litigants2 Procedural fairness increases compliance with court orders and is critical to positive public perceptions of the court system3 Implementing proceduraljustice principles in the courtroom demands the judges mindful or conscious focus and attention Understanding how the brain processes information and the various factors that can influence decisions and courtroom behaviors is a first step to practicing more mindful decision making that is consistent with the principles of procedural justice 2 The Science of Decision Making At any point in time an individual is bombarded with a host of sensory information Most of it is processed behind the scenes with little or no knowledge on the part of the individual Much like a computer continues to work in the background while a wordprocessing program is on the screen individuals constantly process a barrage of sights eg the glare on the computer screen sounds eg the click of the keys smells eg the coffee on the desk and other informationsorting categorizing and storing iteven as the they intently focus on a specific task eg reading a case file or writing an opinion This dual system of information processing is the mechanism by which judgments and decisions are made Neuroscientist Matthew Lieberman has identified different areas of the brain associated with each system by neuroimaging4 The 1 Pamela Casey is Principal Court Research Consultant of the United States National Center for State Courts Kevin Burke is a judge of the Hennepin County District Court in the State of Minnesota and Steve Leben is a judge of the State of Kansas Court of Appeals in the United States Both Judge Burke and Judge Leben are past presidents of the American Judges Association This article is based on a white paper adopted by the AJA in 2012 The authors thank Dr Ingo Keilitz for his editing of the original paper for publication here They also thank Dr Jenny Elek Dr Keilitz and Dr Robert Rust for their substantive contributions to the development of the original paper 2 Kevin Burke and Steve Leben Procedural Fairness A Key Ingredient in Public Satisfaction 44 CT REV 4 2007 see Tom R Tyler Procedural Justice and the Court 44 CT REV 26 3031 2007 describing the key proceduraljustice principles contained in the sidebar 3 See Steve Leben Considering ProceduralFairness Concepts in the Courts of Utah at 46 paper presented at the Utah State judicial conference Sept 14 2011 available at httpwwwproceduralfairnessorgResourcesmediaMicrositesFilesprocedural fairnessUtah20Courts20and20Procedural20Fairness20092011ashx 4 Matthew D Lieberman Reflective and Reflexive Judgment Processes A Social Cognitive Neuroscience Approach in SOCIAL JUDGMENTS IMPLICIT AND EXPLICIT PROCESSES 44 Joseph P Forgas Kipling D Williams and William Von Hippel eds 2003 Scientists are still exploring whether there are two different systems multiple systems or multiple processes that make up one system but most agree on processes that are unconscious rapid automatic and high capacity and those that are conscious slow and deliberative Jonathan St B T Evans DualProcessing Accounts of Reasoning Judgment and Social Cognition 255 ANN REV PSYCHOL 255 256 2008 This article relies on Liebermans model because of his extensive work mapping areas of the brain and because the labels he uses are more descriptive of decisionmaking processes than for example Daniel Kahnemans system 1 and system 2 labels Compare Burke and Leben supra note 2 and Lieberman with DANIEL KAHNEMAN THINKING FAST AND SLOW 2011 International Journal For Court Administration February 2013 2 Heuristicsschemas that rely on only some of the information available so an individual can make a decision quickly and with little effort reflexive automatic system relies on patterns that develop based on the individuals experiences with the world The individual learns over time how to distinguish different objects people actions and situations based on features that coalesce into patterns These patterns referred to as schemas help the brain process information quickly and efficiently Based on prior experiences for example individuals know that a red octagon in the distance means stop The reflective controlled system relies on deliberative intention and effort to perform a task Memorizing a new phone number or computer password requires concentration Once the phone number or password is repeatedly practiced however it becomes a readily accessible schema that comes to mind with little effort For a judge with a domestic violence docket for example a bit of study upfront would teach the judge the elements of domestic batterywith no need to look it up again as each case is called While the reflexive system can process information on an ongoing basis the reflective system has a limited capacity It works for a while but eventually runs out of gas Thus the brain is somewhat miserly about its use of the reflective system This principle of least effort means that decision makers initially tend to rely on the automatic retrieval of schemas to process incoming information and engage the reflective system only when motivated to do otherwise by for example learning a new skill or solving a complex problem5 Gary Klein refers to this reliance on schemas as recognitionprimed decision making6 His premise is that we develop schemas that we subsequently use to size up a situation and decide how to move forward For example a firefighter does not enter a burning building and proceed to analyze all the potential options for action Rather the firefighter instantaneously takes in a variety of information about the current situation and matches it to a response option that has worked in similar situations in the firefighters past The initial option may not have been the best option if there had been enough time to generate and analyze all possible options but it usually works Judges particularly when confronted with large dockets heavy calendars or pressing emergency motions can tend to use the same process as firefighters Sometimes using the first option that works rather than the optimal option will be satisfactory but not always Reflexive decision making works for countless choices an individual makes throughout the day7 And in some instances such as those requiring a quick decision in an emergency situation as in the firefighter example the reflexive approach might be better than a more deliberative reflective approach8 The problem with reflexive decision making however is that sometimes the underlying schemas are based on inaccurate information eg assuming two events that occur together are related as in superstitions are only partially correct eg stereotypes or are applied incorrectly eg using a gesture that is misinterpreted in another country9 Two prominent examples of schemas that can lead to inaccurate decisions are cognitive heuristics and implicit biases 21 Cognitive Heuristics Heuristics are schemas based on only part of the information availableletting us make decisions more quickly Research shows that reliance on heuristics in some circumstances can lead to more accurate decisions and judgments than reliance on more rational models10 But heuristics also can be faulty in a variety of ways leading decision makers to jump to conclusions and make errors in solving problems11 And since heuristics operate in the world of unconscious reflexive processing we can easily make errors without recognizing the source of a faulty decision 5 Serena Chen and Shelly Chaiken The HeuristicSystematic Model in Its Broader Context in DUALPROCESS THEORIES IN SOCIAL PSYCHOLOGY 73 Shelley Chaiken and Yaacov Trope eds 1999 6 Gary A Klein A RecognitionPrimed Decision RPD Model of Rapid Decision Making in DECISION MAKING IN ACTION MODELS AND METHODS 138 Gary A Klein Judith Orasanu Roberta Calderwood and Caroline E Zsambok eds 1993 7 Most of the time we solve problems without coming close to the conscious stepbystep analysis of the deliberative approach In fact attempting to approach even a small fraction of the problems we encounter in a full deliberative manner would bring our activities to a screeching halt Out of necessity most of problemsolving is intuitive PAUL BREST AND LINDA HAMILTON KRIEGER PROBLEM SOLVING DECISION MAKING AND PROFESSIONAL JUDGMENT A GUIDE FOR LAWYERS AND POLICYMAKERS 14 2010 8 See eg Timothy D Wilson et al Introspecting About Reasons Can Reduce PostChoice Satisfaction 19 PERSONALITY AND SOC PSYCHOL BULL 331 1993 Timothy D Wilson and Jonathan W Schooler Thinking Too Much Introspection Can Reduce the Quality of Preferences and Decisions 60 J PERSONALITY AND SOC PSYCHOL 181 1991 9 See Desmond Morris Gestures Meanings and Cultures YOUTUBE Jan 29 2011 httpwwwyoutubecomwatchvfRQSRed58XM for some common examples of cultural differences in interpreting gestures in a video by Desmond Morris 10 Gerd Gigerenzer and Wolfgang Gaissmaier Heuristic Decision Making 62 ANN REV PSYCHOL 451 2011 11 KAHNEMAN supra note 4 International Journal For Court Administration February 2013 3 Anchoring is one of these heuristics For example a person is likely to give a higher or lower estimate of damages if a particularly high or low figure is introduced That numbereven if far off the marktends to act as an anchor around which later estimates are formed In a classic study participants were asked to estimate the number of African countries in the United Nations after witnessing a researcher spin a wheel of fortune that landed on one of two numbers12 The wheel of fortune was rigged to stop only on the numbers 10 and 65 The median response of participants who saw and wrote down the number 10 was 25 countries and the median response for participants who witnessed the number 65 was 45 countries Do judges who are trained to follow procedural rules designed to minimize the influence of irrelevant information succumb to anchoring In a series of studies with German judges Birte English and her colleagues examined whether criminal sentencing decisions could be influenced by anchors that judges knew to be irrelevant 13 The anchor was presented in several ways a by a journalists question about the sentence b by a prosecutors acknowledged randomly determined sentencing demand and c by a prosecutors sentencing demand obtained by the judge throwing a pair of loaded dice In all cases the judges decisions were influenced by the anchors The judges sentenced more harshly when exposed to the higher rather than lower randomly determined anchor Another heuristic is the reliance on small and unrepresentative samples of the population to make decisions Individuals frequently view small samples incorrectly as representative and adjust their expectations accordingly Uri Simonsohn and Francesca Gino who studied the influence of this heuristic14 postulated that individuals who make a set of decisions every day would try to align each daily set of decisions to reflect their overall distribution of decisions To test this hypothesis the researchers reviewed data from over 9000 interviews in which interviewers scored the qualifications of the interviewees They found that interviewers daily subsets small samples of scores tended to reflect their overall distribution of scores population Even though on a given day four interviewees for example may all have been deserving of a high score the interviewers will be reluctant to score all four highly and the interviewees will be more likely to be ranked lower to conform to the interviewers overall population scores Simonsohn and Gino ask us to imagine for example a judge who must make dozens of judgments a day Given that people underestimate the presence of streaks in random sequences the judge may be disproportionately reluctant to evaluate four five or six people in a row in too similar a fashion even though that subset was formed posthoc15 More evidence that judges are susceptible to heuristics comes from a series of studies by law professors Chris Guthrie and Jeffrey Rachlinski and Judge Andrew Wistrich16 They explored judges use of five heuristics a anchoring b framingthe same information presented differently eg the glass is half full versus half empty c hindsightthe sense that specific outcomes were more predictable once the outcomes are known d representativenessignoring statistical baserate information and e egocentricityoverconfidence in ones abilities They found that judges decisions were influenced by each of these heuristics For example when some judges were told about a clearly meritless motion to dismiss for lack of jurisdiction in a diversity case based on the idea that damages were less than 75000 judges who were aware that such a motion had been filed awarded a lesser damage amount 30 less overall than judges who did not know about the motion to dismiss17 But they also found that judges showed less susceptibility to the framing and representativeness heuristics than other experts and laypersons and in a subsequent study that hindsight did not affect judges decisions in a specific scenario involving a probablecause determination18 12 Amos Tversky and Daniel Kahneman Judgment Under Uncertainty Heuristics and Biases 185 SCI 1124 1974 13 Birte Englich Thomas Mussweiler and Fritz Strack Playing Dice with Criminal Sentences The Influence of Irrelevant Anchors on Experts Judicial Decision Making 32 PERSONALITY AND SOC PSYCHOL BULL 188 2006 14 Uri Simonsohn and Francesca Gino Daily Horizons Evidence of Narrow Bracketing in Judgment from 10 Years of MBAAdmission Interviews PSYCHOLOGICAL SCIENCE forthcoming 15 Id at 1011 citing Thomas Gilovich Robert Vallone and Amos Tversky The Hot Hand in Basketball On the Misperception of Random Sequences 17 COGNITIVE PSYCHOL 295 1985 16 Chris Guthrie Jeffrey J Rachlinski and Andrew J Wistrich Inside the Judicial Mind 86 CORNELL L REV 777 2001 17 Chris Guthrie Jeffrey J Rachlinski and Andrew J Wistrich Blinking on the Bench How Judges Decide Cases 93 CORNELL L REV 1 21 2007 18 Andrew J Wistrich Chris Guthrie and Jeffrey J Rachlinski Can Judges Ignore Inadmissible Information The Difficulty of Deliberately Disregarding 153 U PA L REV 1251 2005 International Journal For Court Administration February 2013 4 22 Implicit Biases Implicit biases another type of schema also threaten fair processes and just outcomes They are based on implicit attitudes or stereotypes that operate below the radar Research shows that even individuals who consciously strive to be fair and objective can nonetheless be influenced by implicit biases19 Scientists use a variety of methods to measure implicit bias but the most common is comparing individuals reaction times in response to pairings of two stimuli that are strongly associated eg elderly and frail with two stimuli that are less strongly associated eg elderly and robust Project Implicit begun in 1998 by researchers from several US universities offers webbased reactiontime tests referred to as Implicit Association Tests in over fifteen areas such as weight age race and religion that anyone can take20 A review of the results of over 25 million tests taken between 2000 and 2006 revealed the pervasiveness of implicit preferences for socially privileged groups such as white over black and straight over gay21 Research also shows that implicit biases can influence decisions in a variety of reallife settings such as employers hiring job applicants police officers deciding to shoot healthcare workers providing medical treatment and voters making voting choices22 Research by Rachlinski and his colleagues suggests that judges may be influenced by implicit bias23 They found for example a strong white preference on the Implicit Association Test among white judges In keeping with the general population findings of the Implicit Association Test the black judges showed no clear preference overall 44 showed a white preference but the preference was weaker overall The researchers also reported some evidence that implicit bias affected judges sentencing decisions though this finding was less clear Importantly for judicial decision making the researchers found that when judges are aware of a need to monitor their own responses for the influence of implicit racial biases and are motivated to suppress that bias they appear able to do so24 3 Mindful Judicial Decisions Scientists agree that most behaviors and decisions result from a combination of both reflexive and reflective processes The question is the extent to and ways in which the two processes work together for any particular decision25 Several researchers postulate what psychologist Jonathan Evans refers to as defaultinterventionist models of judgment and decision making26 These models propose that initial intuitive or reflexive responses are generated which are then modified or endorsed by the reflective system The reflective system routinely endorses the initial responses reserving more deliberative effortful processing to when the individual is motivated to do so and working memory and time are sufficient27 In most situations default processing is good enough But in the courtroom where individuals face possible restrictions of liberty and judges consider other lifealtering issuessuch as family preservation personal safety economic security and adequate housingfair processes and just outcomes demand a more deliberate approach Given that most behaviors and decisions result from a combination of both reflexive and reflective processes are there ways to lessen the effects of faulty heuristics and implicit biases One step is to understand some of the causes of diminished decisionmaking abilities which include fatigue like sleep deprivation other depleted resources like glucose levels multitasking mood and fluency ie ease of processing information 19 Patricia G Devine Stereotypes and Prejudice Their Automatic and Controlled Components 56 J PERSONALITY AND SOC PSYCHOL 5 1989 20 PROJECT IMPLICIT httpwwwprojectimplicitnetabouthtml retrieved September 28 2012 21 Kristin A Lane Jerry Kang and Mahzarin R Banaji Implicit Social Cognition and Law 3 ANN REV L AND SOC SCI 427 2007 Brian A Nosek et al Pervasiveness and Correlates of Implicit Attitudes and Stereotypes 18 EUR REV SOC PSYCHOL 36 2007 22 John T Jost et al The Existence of Implicit Bias Is Beyond Reasonable Doubt A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies That No Manager Should Ignore 29 RES ORGANIZATIONAL BEHAV 39 2009 23Jeffrey J Rachlinski Sheri Lynn Johnson Andrew J Wistrich and Chris Guthrie Does Unconscious Racial Bias Affect Trial Judges 84 NOTRE DAME L REV 1195 122526 2009 24 Id at 1221 For judicialeducation resources on implicit bias see PAMELA M CASEY ROGER K WARREN FRED L CHEESMAN II JENNIFER K ELEK HELPING COURTS ADDRESS IMPLICIT BIAS 2012 available at wwwncscorgibreport 25 Robert Boyd et al Explicit and Implicit Strategies in Decision Making in BETTER THAN CONSCIOUS DECISION MAKING THE HUMAN MIND AND IMPLICATIONS FOR INSTITUTIONS 225 Christoph Engel and Wolf Singer eds 2008 Roy F Baumeister E J Masicampo and Kathleen D Vohs Do Conscious Thoughts Cause Behavior 62 ANN REV PSYCHOL 331 2011 Evans supra note 4 26 Evans supra note 4 at 266 27 Jonathan St B T Evans The HeuristicAnalytic Theory of Reasoning Extension and Evaluation 13 PSYCHONOMIC BULL AND REV 378 382 2006 International Journal For Court Administration February 2013 5 31 Effects of Fatigue Diminished Resources and Multitasking We all know that fatigue depleted resources and multitasking lower performance Researchers Yvonne Harrison and James Horne reviewed studies on the effects of sleep deprivation and identified several effects including poor communication lack of innovation inflexibility of thought processes inappropriate attention to peripheral concerns or distraction overreliance on previous strategies unwillingness to try out novel strategies unreliable memory for when events occurred changes in mood including loss of empathy with colleagues and inability to deal with surprise and the unexpected28 Blood sugar glucose fuels the brain and research shows that reflective processes demand more fuel than reflexive processes When glucose levels are low individuals have a tendency to rely more on reflexive decisionmaking strategies and have more difficulty summoning their reflective system to check their decisions29 This research may explain the findings of a recent study that examined decision fatigue among Israeli paroleboard judges30 The study found that the experienced judges decisions fluctuated based on when cases were heard during the day Cases heard early in the morning and just after breaks with meals were more likely to end with a parole grant than cases heard shortly before breaks and at the end of the day That is decisions tended to default to the status quo of denying parole as the number of cases increased until judges took a break Because each break included a meal it is not possible to say with certainty that it was the meal and not the timeout that affected subsequent decisions But research in this area suggests that the meal replenished glucose stores and thus contributed to the change in default processing in cases following a break In either case the study suggests that judicial decisions can be influenced by whether the judge took a break to eat31 Finally multitasking involves the rapid switching from one task to another Done in milliseconds the brain postpones one task and sets up for the next32 For more than 97 of the population this task switching has a cost in performance33 Despite numerous studies to the contrary however most individuals think that they are good at multitasking and more efficient as a result Many judges are the same even if they concede that multitasking has a cost many judges are quite good at articulating thatfor themthe cost is negligible and worth it As noted researchers consistently find diminished performance by those who multitask For example psychologists Jason Watson and David Strayer tested the performance of 200 individuals on a driving simulation task a cognitive task involving memorization and basic math problems and a dualtask condition involving both the driving simulation and the cognitive tasks34 Performance measures on the individual tasks were significantly better than those in the dualtask condition Task switching in the courtroom has the potential of distracting the judge and reducing performance but it also carries with it the sense that a judge is not fully engaged with the matter at hand A central tenet of procedural fairness is that the judge is an active listener If the judge seems distracted with other matters litigants will not feel that their voice has been fully heard A recent study by Harvard psychologists demonstrated the importance of giving people voice35 The researchers found that regions of the brain associated with reward are activated when individuals are allowed to talk about themselves 32 Effects of Mood Mood affects the way we process information with those in a positive mood generally more likely to engage in reflexive automatic processing and those in a negative mood more likely to engage in more reflective deliberative processing36 28 Yvonne Harrison and James A Horne The Impact of Sleep Deprivation on Decision Making A Review 6 J EXPERIMENTAL PSYCHOL APPLIED 236 246 2000 29 EJ Masicampo and Roy F Baumeister Toward a Physiology of DualProcess Reasoning and Judgment Lemonade Willpower and Expensive RuleBased Analysis 19 Psychological Science 255 2008 30 Shai Danziger Jonathan Levav and Liora AvnaimPesso Extraneous Factors in Judicial Decisions 108 PROC NATL ACAD SCI 6889 2011 31 Id at 6890 32 Stephen Monsell Task Switching 7 TRENDS COGNITIVE SCI 134 2003 33 Jason M Watson and David L Strayer Supertaskers Profiles in Extraordinary Multitasking Ability 17 PSYCHONOMIC BULL AND R 479 2010 34 Id 35 Diana I Tamir and Jason P Mitchell Disclosing Information About the Self Is Intrinsically Rewarding 109 PROC NATL ACAD SCI 8038 2012 36 Gerald L Clore and Jeffrey R Huntsinger How Emotions Inform Judgment and Regulate Thought 11 TRENDS COGNITIVE SCI 393 2007 International Journal For Court Administration February 2013 6 One explanation is that positive moods enhance the default processing approachthe status quoand negative moods inhibit it37 In many instances individuals default to reflexive processing thus positive moods often are associated with reflexive processing If things are good there is little motivation to engage in more effortful processing Reliance on stereotypes comes easily38 A negative mood on the other hand signals a problem that requires more focus and attention Researchers Kimberly Elsbach and Pamela Barr suggest that different moods are more suited for some purposes than others Positive moods are best suited for decisionmaking tasks that are interesting or require creativity or efficiency while negative moods are best suited for decision tasks that are effortful andor require careful consideration and analysis of a number of different issues and potential outcomes39 It is possible for individuals to override their spontaneous reliance on reflexive processing when in a positive mood by being more vigilant Research shows for example that specifically instructing individuals to pay attention and holding individuals accountable for their decisions can induce more effortful processing40 33 Fluency Fluency refers to the ease with which we process information People generally consider information that is processed more fluently ie is more easily understood as more accurate and true than less fluent information41 This holds true for a range of sensory and cognitive information For example information written in an easytoread font is considered more accurate than the same information written in a more difficulttoprocess font Likewise information that is familiar easier to pronounce and easier to retrieve from memory is judged more true and likeable and individuals express more confidence in it whatever its actual content and accuracy may be Much of advertising is based on the idea of fluency Psychologist Adam Alter and his colleagues demonstrated that fluency is associated with reflexive information processing and disfluency is associated with more reflective processing42 In one of their studies they asked participants to complete the Cognitive Reflection Test a series of three questions that seem to have initially easy answers but upon further reflection require more systematic processing to obtain the correct responses The researchers gave some of the participants in the study the questions in an easytoread font and other participants received the questions in a difficultto read font Those in the latter disfluency group answered more items correctly The researchers suggest that the difficult font served as a cue to the reflective system that the task would require more effort to process Those in the easyfont group had no clue that more effortful processing was required Nancy Pennington and Reid Hastie demonstrated the potential effects of fluency in a courtroom setting They found that when individuals read case materials and were asked to come to a decision at the end similar to the typical jurors task the individuals develop narrative stories to understand the evidence The researchers manipulated the order of the evidence provided making it easier or harder to develop a coherent narrative Consistent with the research on fluency they found that the ease in creating a narrative story affected perceptions of evidence strength judgments about confidence and the impact of information about witness credibility43 Decisions shifted in the direction of the narratives that were easier to construct 4 Becoming More Mindful Almost everything a judge does involves processing information and making decisions So if they are to improve their performance as judges they must focus on improving the performance of those tasks Doing so can offer additional benefits as well One aspect of being more mindful is finding ways to relieve stress which can interfere with information processing and decision making Some judges may regard job stress as part of the job but job stress can lead to 37 Jeffrey R Huntsinger Gerald L Clore and Yoav BarAnan Mood and GlobalLocal Focus Priming a Local Focus Reverses the Link Between Mood and GlobalLocal Processing 10 EMOTION 722 2010 38 Galen V Bodenhausen Geoffrey P Kramer and Karin Süsser Happiness and Stereotypic Thinking in Social Judgment 66 J PERSONALITY AND SOC PSYCHOL 621 1994 39 Kimberly D Elsbach and Pamela S Barr The Effects of Mood on Individuals Use of Structured Decision Protocols 10 ORGANIZATION SCI 181 193 1999 40 Norbert Schwarz and Gerald L Clore Feelings and Phenomenal Experiences in SOCIAL PSYCHOLOGY HANDBOOK OF BASIC PRINCIPLES 385 Arie W Kruglanski and E Tory Higgins eds 2nd ed 2007 Bodenhausen Kramer and Süsser supra note 38 41 Adam L Alter and Daniel M Oppenheimer Uniting the Tribes of Fluency to Form a Metacognitive Nation 13 PERSONALITY AND SOC PSYCHOL R 219 2009 42 Adam L Alter Daniel M Oppenheimer Nicholas Epley and Rebecca N Eyre Overcoming Intuition Metacognitive Difficulty Activates Analytic Reasoning 136 J EXPERIMENTAL PSYCHOL GEN 569 2007 43 Pennington and Hastie Explaining the Evidence Tests of the Story Model for Juror Decision Making 62 J PERSONALITY AND SOC PSYCHOL 189 202 1992 International Journal For Court Administration February 2013 7 diminished physical health44 Of course consistent with the theme of this paper stress also can lead to a diminished capacity for good decision making45 The remainder of this paper suggests some strategies that may help judges be more mindful and make better decisions First they might do well to should focus on the higher purpose of the proceeding and properly deciding a case with a real impact on someone not just processing a court docket Second they could formalize and critique heuristics used to make repetitive but important decisions For example a judge might consider what specific factors are leading to bail decisions or probation conditions Are they based on accurate information Third they could become more mindful and periodically read the dials Am I tired Is noise from outside the courtroom a distraction Is a break in order Fourth decision aids like checklists may help Finally they might benefit from feedback and fostering accountability 41 Focusing on Purpose Sometimes the sheer press of business makes it difficult for a judge to focus on the individual case The primary purpose of court work becomes moving cases as opposed to hearing them It is hard to be mindful when the focus is on getting through a docket signing orders writing opinions preparing a speech for a local community group and any number of other responsibilities that fall on a judges shoulder Taking timeeven just a few minutesto bring full attention to the matter at hand offers a check on reflexive automatic decision making and a step toward ensuring a fair process and a just outcome Administrative Judge Judy Harris Kluger makes this point in her reflections about working in the busy New York City Criminal Court For a long time my claim to fame was that I arraigned 200 cases in one session Thats ridiculous When I was arraigning cases Id be handed the papers say the sentence is going to be five days ten days whatever never even looking at the defendant At a community court Im able to look up from the papers and see the person standing in front of me It takes two or three more minutes but I think a judge is much more effective that way46 Judges who see their work not as the volume of the cases they move in a particular day but rather as their contribution to a fair and just court system are likely to find more satisfaction and meaning in their work47 Judges who see themselves as cogs in the machinery of the system may benefit from remembering their contributions to the larger system goals 42 Formalizing Decision Heuristics Although the law may assume that decision makers review and weigh all relevant information in a systematic manner to reach an optimal judgment research demonstrates that this is not the case in practice In a study of bail decisions in England and Wales researchers found that a simple matching heuristic explained decisions better than a more complex integrated model of decision making The matching heuristic relied primarily on three factors bail decisions could be predicted 92 of the time in one court for example by relying on 1 whether the prosecutor opposed bail 2 whether a previous court imposed conditions or remanded in custody and 3 whether police imposed conditions or remanded in custody If the answer was yes to any of these the magistrates decision was to deny bail48 In another study the findings showed that magistrates beliefs about their decisionmaking process differed from their practice ie relying on a simple heuristic49 Clement McDonald observed that physicians often rely on a subset of information and extrapolate based on experience to make diagnoses and treatment decisions He notes that the lack of scientific information available on some drugs and diseases for example requires doctors to develop heuristics Rather than ignoring the use of heuristics he calls for the medical community to formalize them Exposing these heuristics to critical review so that they can be clarified improved and standardized may reduce practice variation thereby making it easier to optimize the care process he writes50 In the same way judges can consider the rules of thumb they may be using to process their cases whether traffic small claims family civil or criminal Are there specific factors that cause one judge to put the defendant in custody at sentencing while another does not Does a defendants marital status have any bearing on a bail decision Taking time to 44 Eg Jo Ann Heydenfeldt Linda Herkenhoff and Mary Coe Mind Fitness Training Emerging Practices Business Applications Applied Neuroscience 1 Intl J Humanities Soc Sci 150 150 2011 45 Id 46 Id at 81 47 Brent D Rosso Kathryn H Dekas and Amy Wrzesniewski On the Meaning of Work A Theoretical Integration and Review 30 RESEARCH IN ORGANIZATIONAL BEHAVIOR 91 2010 48 Mandeep K Dhami Psychological Models of Professional Decision Making 14 PSYCHOL SCI 175 2003 49 Mandeep K Dhami and Peter Ayton Bailing and Jailing the Fast and Frugal Way 14 J BEHAV DECISION MAKING 141 163 2001 50 Clement J McDonald Medical Heuristics The Silent Adjudicators of Clinical Practice 124 ANNALS INTERNAL MED 56 57 1996 International Journal For Court Administration February 2013 8 reflectively identify and rely on decision heuristics that are transparent and predictable across cases and judges could go a long way to enhancing litigant perceptions of fairness51 43 Reading the Dials The principles of procedural justice require focus and attention which may be hard to come by if a judge is tired or hungry is multitasking or is not in a mood to engage in effortful processing Taking stock of such distracting factors serves as a reminder that more concentration may be necessary Sometimes little annoyances may become irritating distractions and unwittingly raise the level of tension in the courtroom Sometimes the judge just wants to push through the remaining cases when a break would be best for all Periodically reading the dials helps identify distractions and potential ways to lessen their effects For example does the temperature in the courtroom need to be adjusted or noise in the hallways reduced Is it time for a break Some judges and lawyers have adopted a practice of mindfulness to strengthen their ability to read the dials52 Harvard researchers describe the practice of mindfulness as meditation that encompasses focusing attention on the experience of thoughts emotions and body sensations simply observing them as they arise and pass way53 Other researchers note that mindfulness is thought to enable one to respond to situations more reflectively as opposed to reflexively54 A common meditation practice involves sitting quietly and concentrating on the breath Individuals try to identify when their mind wanders from focusing on the experience of breathing and once they do they return the minds focus to the breath As they practice this sequence over and over they gradually learn to recognize the thoughts and emotions that pull their attention away and are able to regain focus more easily Research by psychologist Amishi Jha and her colleagues shows that the ability to focus attention is evident after just thirty minutes of practice a day for eight weeks55 As with physical exercise the longer individuals practice mindfulness meditation the more skilled they become56 Bob Stahl and Elisha Goldstein offer another mindfulness practice to help individuals take a quick look at the dials They refer to it as the STOP meditation57 The STOP acronym reminds individuals to Stop what they are currently doing Take a deep breath and focus on the sensation of breathing Observe what they are thinking feeling and doing and Proceed with new awareness Judges can use this quick pause throughout the day especially when they find themselves getting distracted bored or overwhelmed The pause helps to refocus attention and reaffirm the priority to ensure each case is given a fair process Attorney Douglas Codiga expressed concern that judges and attorneys misconceptions about mindfulness being mystical or otherworldly requiring a commitment to Buddhism or amounting to just another stressreduction technique would lessen its potential to impact the field58 Contrary to these misconceptions he argued that mindfulness is compatible with legal principles of reason analysis and skepticism does not conflict with preexisting religious beliefs and requires no 51 Gerd Gigerenzer Heuristics in HEURISTICS AND THE LAW 17 Gerd Gigerenzer and Christoph Engel eds 2006 52 See eg Mindfulness in Law Web site at httpmindfulnessinlawcomHomehtml The Institute for Mindfulness Studies The Mindful Judge website at httpthemindfuljudgecomHomehtml Amanda Enayati Seeking Serenity When Lawyers Go CNN HEALTH May 11 2011 httpthechartblogscnncom20110511seekingserenitywhenlawyersgozen and Leonard L Riskin The Contemplative Lawyer On the Potential Contributions of Mindfulness Mediation to Law Students Lawyers and Their Clients 7 Negotiation L Rev 1 2002 53 Britta K Hölzel et al How Does Mindfulness Meditation Work Proposing Mechanisms of Action from a Conceptual and Neural Perspective 6 PERSP PSYCHOL SCI 537 538 2011 54 Scott R Bishop et al Mindfulness A Proposed Operational Definition 11 CLINICAL PSYCHOL SCI AND PRAC 230 232 2004 55 Amishi P Jha Jason Krompinger and Michael J Baime Mindfulness Training Modifies Subsystems of Attention 7 COGNITIVE AFFECTIVE AND BEHAV NEUROSCIENCE 109 2007 56 Alberto Chiesa Raffaella Calati and Alessandro Serreti Does Mindfulness Training Improve Cognitive Abilities A Systematic Review of Neuropsychological Findings 31 CLINICAL PSYCHOL R 449 2011 57 See STOP meditation demonstrated at httpwwwyoutubecomwatchvEiuTpeu5xQc See generally ELISHA GOLDSTEIN THE NOW EFFECT HOW THIS MOMENT CAN CHANGE THE REST OF YOUR LIFE 2012 BOB STAHL AND ELISHA GOLDSTEIN A MINDFULNESSBASED STRESS REDUCTION WORKBOOK 2010 58 Douglas A Codiga Reflections on the Potential Growth of Mindfulness Meditation in the Law 7 HARV NEGOT L REV 109 2002 International Journal For Court Administration February 2013 9 commitment to Buddhism and in addition to reducing stress and improving lawyering skills mindfulness would help legal professionals develop insights regarding their entire lives 44 Using Decision Aids At first blush the idea of using a decision aid like a checklist or a benchcard may seem mundane But compelling lessons from other professions such as health care and aviation demonstrate their incredible potential for improving performance Physician Atul Gawande for example tells the story of how simple checklists requiring such simple steps as washing hands with soap and fully covering the patient with sterile drapes implemented in a Michigan hospital intensive care units saved over 1500 lives and an estimated 175 million dollars in costs59 Judges sometimes use checklists to decide substantive issues but judges might also benefit from having procedural checklists60 In busy courtrooms with crowded dockets a judge can easily fail to cover an essential piece of information that a defendant must be told before a plea may be voluntarily entered When using checklists however judges should be careful also to follow the principles of procedural fairness and not simply cross off items on a checklist For example it is important that the defendant actually understand the rights he or she is giving up not just answering yes to a series of questions obviously intended to get an affirmative response Do you understand Other tools based on evidencebased practices such as risk and needs assessments can be helpful to judges in making sentencing and probationrevocation decisions61 Research demonstrates that standardized objective assessment instruments enhance decision making across a wide variety of professional decisions62 Researchers Stephen Gottfredson and Laura Moriarty suggest the following reasons in part based on reflexive processing for the superiority of statistical methods of prediction compared to intuitive methods decision makers may not use information reliably may not attend to base rates may inappropriately weight predictive items may weight items that are not predictive and may be influenced by causal attributions or spurious correlations63 45 Seeking Feedback and Fostering Accountability Because feedback is essential to learning and developing expertise judges might seek and courts could benefit from providing opportunities to obtain feedback Judges seldom know the results of their decisions Even when a judges decision is reviewed by an appellate court the lag time between making the decision and getting appellate feedback diminishes the value of the information Individuals benefit the most when feedback is immediate Judges also cannot improve their decisions when they do not know what is and is not working at a systemic level Does the court have access to outcome data on for example pretrial release sentencing and probation revocation decisions What are the trends in the data What cases most often result in failure to appeal or rearrest and what decision heuristics might be guiding the cases The court could also collect information on litigant satisfaction using a survey such as the National Center for State Courts CourTools Access and Fairness Measure64 The results of the survey would indicate whether judges assessments of their practice of procedural fairness principles are consistent with litigants experiences Judges also could be videotaped periodically or observed by a mentor or colleague A neutral observer more likely will be able to identify mistakes in reasoning or instances where procedural fairness practices could be strengthened65 Finally accountability can lead to more effortful reflective processing of information Researcher Eileen Braman explains 59 Atul Gawande The Checklist THE NEW YORKER Dec 10 2007 available at httpwwwnewyorkercomreporting20071210071210fafactgawande see also ATUL GAWANDE THE CHECKLIST MANIFESTO HOW TO GET THINGS RIGHT 2011 Ingo Keilitz Never Events in Court Administration Lessons from Health Care Reform 211 THE COURT MANAGER 615 2009 60 For examples of substantivelaw checklists see Guthrie Rachlinski and Wistrich supra note 17 at 40 61 Pamela M Casey Roger K Warren and Jennifer K Elek Using Offender Risk and Needs Assessment Information at Sentencing Guidance for Courts from a National Working Group NATIONAL CENTER FOR STATE COURTS 2011 available at httpwwwncscorgServicesand ExpertsmediaFilesPDFServices20and20ExpertsAreas20of20expertiseSentencing20ProbationRNA20Guide20Final ashx 62 Stephen D Gottfredson and Laura J Moriarty Clinical Versus Actuarial Judgments in Criminal Justice Decisions Should One Replace the Other 70 FED PROBATION 15 2006 available at httpheinonlineorgHOLLandingPagecollectionjournalsandhandleheinjournalsfedpro70anddiv23andidandpage 63 Id 64 National Center for State Courts CourTools Measure 1 Access and Fairness 2005 available at httpwwwcourtoolsorgmediaMicrositesFilesCourToolscourtoolsTrialmeasure1accessandfairnessashx 65 Brest and Krieger supra note 7 at 635 International Journal For Court Administration February 2013 10 Put another way accountability tends to heighten accuracy motivations When we know others are watching we want to get things right and we also strive to use appropriate decision criteria to avoid criticisms that may be raised down the line66 One suggestion for holding judges accountable is to require that they provide an explanation for their decision preferably in writing Guthrie and his colleagues argue that the discipline of opinion writing might enable wellmeaning judges to overcome their intuitive impressionistic reactions67 Research also shows that individuals who were required to justify each step in a decision process performed better68 To the extent that judges ask themselves why at each point in their decision process and consider alternatives their decisions will be the result of more effortful and deliberate processing And to the extent that they are willing to engage in obtaining and using feedback from others as discussed above they will enhance a culture of accountability 66 Eileen Braman Searching for Constraint in Legal Decision Making in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 215 David E Klein and Gregory Mitchell eds 2010 67 Guthrie Rachlinski and Wistrich supra note 17 at 37 68 Baumeister Masicampo and Vohs supra note 26