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A central function of thought is finding reasons we can persuasively offer for our actions to those around us. Judges have made a profession of it.

 

The occupational hazard is that a reason can explain how we reached a conclusion or help us remain there. Both arrive in chambers looking respectable. Both can carry citations.

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Philip Tetlock’s research on accountability exposes the difficulty. Under some conditions, having to justify a decision encourages people to question themselves. Under others, it encourages them to defend themselves. More thought can produce a more elaborate defense of the same mistake.[1]

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The audience includes the person doing the thinking. Ziva Kunda’s work on motivated reasoning explains how people can selectively search for and evaluate reasons supporting a preferred conclusion, then experience the result as an objective judgment. Sincerity survives the process quite comfortably.[2]

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That is an awkward possibility for a profession whose principal evidence of careful thought is a carefully written explanation. A ruling may be lucid, thoroughly cited, and sincerely believed. None of those qualities, by itself, tells us whether the reasoning led to the result or was retained to defend it.

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Lawyers should approach this subject without the satisfaction of having diagnosed somebody else. We spend our working lives finding reasons for conclusions our clients would prefer. I claim no exemption. But a judge deciding a motion or trying a case has an obligation that advocacy cannot discharge: to let the better reason prevail, including when it arrives inconveniently late and from an irritating lawyer.

When a tentative conclusion acquires a constituency

Tetlock and Jennifer Lerner’s review identifies an important distinction. Before commitment, expecting to explain a decision to an audience whose views are unknown can encourage scrutiny of competing positions. After commitment, the demand for reasons can encourage defensive justification. Accountability’s effects depend on when it arrives and whom the decision-maker expects to satisfy.[1]

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For motion practice, this raises an uncomfortable question: when does a tentative ruling become a position with its own counsel? The experiments do not establish that issuing tentatives causes bias. They give us reason to examine what happens when a provisional conclusion begins to require defending.

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Suppose counsel identifies a document that contradicts the tentative’s factual premise. The court can examine the document and reconsider the premise. It can also discover that the premise was never particularly important.

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Perhaps it wasn’t. But if each defeated premise is replaced while the conclusion remains untouched, the conclusion has acquired a privilege the evidence does not enjoy: immunity from cross-examination. Before finding another route to the same result, the court should ask what the failed premise tells it about the route already taken. A tentative ruling should not need an appellate reversal to discover that it was tentative.

When the evidence begins agreeing with you

Dan Simon and his collaborators examined a related process, cognitive coherence. As participants moved toward a decision, their assessments of supporting and opposing considerations shifted into closer alignment with it. The evidence influenced the conclusion; the emerging conclusion also influenced the apparent strength of the evidence. Simon’s account includes experiments with students and other nonjudicial participants, so these findings cannot supply a judicial error rate.[3]

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They do suggest a hazard worth watching during a bench consideration. Imagine an early witness supplies a persuasive account of the dispute. A later email is ambiguous. Read through that account, it seems confirmatory. Another witness hesitates; the hesitation seems evasive. Several impressions now appear to corroborate one another, although each has been interpreted through the same initial assumption. One impression has returned to the courtroom wearing several different exhibits.

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The safeguard begins with a stubbornly particular question: what does each item establish independently? Read the email without the opening narrative. Identify what makes this witness’s hesitation evidence of dishonesty on this subject. If every inference borrows its force from the conclusion it supposedly supports, the apparent corroboration is circular. Counting the inferences will not straighten it out.

The robe was included in the experiment

Fortunately, researchers have also studied judges directly. Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich tested judges on problems designed to elicit attractive but incorrect intuitive answers. Of 252 Florida trial judges who completed all three questions on a cognitive reflection test, 77 answered none correctly and 37 answered all three correctly. These are results on a short experimental test, not a report card on their rulings. The researchers also found that judges could override intuition in some legal problems.[4]

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A later experiment by Wistrich, Rachlinski, and Guthrie brought the issue closer to the judicial day job. Judges considered whether attaching a forged visa to a genuine passport constituted forgery under the supplied law. One version described a father seeking money for his daughter’s lifesaving transplant. Another described a man pursuing stolen drug-cartel proceeds. Forty-four percent of responding judges in the father condition found forgery, compared with 60 percent in the cartel condition.[5]

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The passport had not changed. Its owner had become less agreeable.

The researchers distinguished interpretation of the offense from sentencing, where motive could properly matter.[5] Terry Maroney supplied a further necessary qualification: experiments about generalized liking and dislike cannot settle the much larger question of emotion’s place in judging.[6] Compassion is hardly a professional defect. The problem arises when a feeling about a person starts interpreting a statute.

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On a motion, the useful question is what legal work the reaction is doing. If the conduct establishes an element, identify the element and the proof. If it merely makes the litigant unpleasant, the missing element remains missing. Dislike is an energetic advocate, but it should still be required to cite the record.

Excluding evidence does not erase its influence

In another set of experiments, Wistrich, Guthrie, and Rachlinski found that judges had difficulty disregarding certain inadmissible information, including settlement demands and privileged communications. The information sometimes influenced decisions even when judges had ruled it inadmissible. They successfully disregarded it in other settings, including the outcome of a search when assessing probable cause. The results show both vulnerability and an ability to resist it.[7]

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For the judge who is also the factfinder, an evidentiary ruling therefore leaves a practical task: examine whether the remaining, admissible proof independently supports the finding. Repeating an intention to disregard material cannot establish that it has ceased to affect the interpretation of everything else. Where procedure permits, limiting unnecessary exposure deserves consideration before relying on mental subtraction afterward.

The evidence leaves the record but stays in the room

Wistrich, Guthrie, and Rachlinski also tested whether judges could disregard inadmissible information. In some settings, settlement demands and privileged communications influenced decisions even when judges had ruled the information inadmissible. In others, judges successfully disregarded it, including the outcome of a search when assessing probable cause. The results establish both the difficulty and the possibility of resisting it.[7]

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The mind, apparently, does not always treat an exclusion order as binding precedent.

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For the judge who is also the factfinder, that leaves work to do after the objection is sustained. Does the admissible evidence independently support the finding? Has the excluded material made an otherwise ambiguous fact seem decisive? An intention to disregard information cannot establish that its influence has disappeared. Where procedure permits, avoiding unnecessary exposure deserves consideration before asking the mind to forget what has already made an impression.

A brain scan is not a license to embellish

Drew Westen and colleagues used fMRI to study 30 committed political partisans confronted with contradictions involving favored and opposing candidates. They reported ventral-striatal activity that they interpreted as consistent with reward or relief associated with reaching a congenial resolution. They did not measure dopamine release or establish the precise instant at which participants reached their conclusions.[8]

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The irresistible popular translation is that an “aha” moment gives the decision-maker a hit of dopamine. It is also more than the experiment proved. No judges or courtroom advocacy were tested. Russell Poldrack’s work identifies a further limit: activity in a region associated with a mental process does not, by itself, establish that the process occurred.[9]

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The temptation is instructive. A finding about satisfying explanations becomes more satisfying when we overstate it. We should resist the demonstration.

Give the first impression something to worry about

Some interventions have experimental support. In studies involving sitting Chinese judges, Zhuang Liu found that requiring reasons before a decision reduced the influence of a stimulus designed to provoke negative feelings about a defendant. A forced deliberation period produced a similar effect in another study; delegating the writing of reasons reinforced bias in a third. Those results belong to particular tasks and an institutional setting. They do not condemn law clerks or make a recess a cure.[10]

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Frank Zenker and colleagues tested giving reasons for and against a position with 239 professional judges and 372 lay judges in Sweden. Participants assessed the relevance of a witness’s prior conviction to credibility. Bias was low overall; the researchers found only a small reduction among professional judges.[11] A small benefit is worth reporting as a small benefit. The science will survive without a sales department.

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These findings suggest practical disciplines for motions and bench trials. The applications that follow have not been validated as a package in ordinary American courtrooms. Their value will depend on whether they provoke an actual examination of the decision.

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Begin the reasons while the result is still available for revision. Write the controlling proposition and identify the evidence needed to support it. On a motion, state the limits imposed by the procedural posture. An impression about who deserves to win the lawsuit should not quietly decide a question the motion does not present.

Give the strongest contrary point enough room to be dangerous. Identify the actual document, testimony, or authority that threatens the result, and explain why it succeeds or fails. “The court has considered all the arguments” may record an admirable intention. It leaves the decisive objection wondering whether it was among them.

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During a bench trial, preserve important uncertainties in contemporaneous notes. If an assessment changes, identify what changed it. New testimony may explain the shift; so may a sound inference from the completed record. Increased confidence deserves a reason of its own. Familiarity with a conclusion should not be allowed to masquerade as additional evidence.

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At a hearing, let a contradiction in the tentative remain unresolved long enough to examine it. Counsel may have misunderstood the record. Counsel may have found the error. A court that begins composing the answer before examining the objection risks becoming the most capable advocate in the room for a position nobody retained it to represent.

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A crowded calendar will not accommodate a second trial inside every ruling. Concentrate the inquiry where the result turns: the indispensable fact, the inference carrying the conclusion, the strongest objection to it. A focused examination is a practical demand. Endless self-doubt would merely give delay an intellectual pedigree.

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Judicial independence includes the freedom to disappoint one’s own first impression. Changing course because the record requires it is the work the parties came for. The first impression has had its hearing. It has no entitlement to win.

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A Swedish study by Frank Zenker and colleagues tested giving reasons for and against a position with 239 professional judges and 372 lay judges. The task concerned the relevance of a witness’s prior conviction to credibility. Bias was low overall, and the researchers found only a small reduction among professional judges.[11] The modest result matters. A useful discipline need not be advertised as a cure.

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For motions and bench trials, these findings support trying a few deliberate practices.

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1. Before settling on a disposition, write the controlling proposition and the evidence needed to support it.

2. On a motion, include the limits of the decision the procedural posture permits.

3. Keep an impression about who should ultimately win from silently answering a narrower question.​

4. Give the strongest contrary point its full content.

5. Identify the actual document, testimony, or authority that creates difficulty. A sentence saying the court has considered all the arguments tells the reader very little about whether the decisive objection was understood. State why that objection succeeds or fails.

6. At a bench trial, preserve important uncertainties in contemporaneous notes.

7. When an assessment changes, identify what changed it. New testimony may supply the answer. So may a sound inference from the completed record. The exercise is to make the reason for increased confidence visible, including to the person experiencing it.

8. ​At a hearing, allow a contradiction in the tentative’s reasoning to remain unresolved long enough to examine it. Counsel may be mistaken. Counsel may also have found the error. The court’s first explanation should receive the same scrutiny as the lawyer’s.

9. ​No judge can conduct a second trial inside every ruling. A focused examination of the point on which the result actually turns is a more realistic demand. Which fact must be true? Which inference carries the result? What is the strongest reason to reject it?

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Judicial independence includes the freedom to disappoint one’s own first impression. A judge who changes course because the record requires it has done the work the parties came for. The original impression has no entitlement to prevail.

Research notes

1. Philip E. Tetlock, The Impact of Accountability on Judgment and Choice: Toward a Social Contingency Model, 25 Advances in Experimental Social Psychology 331–376 (1992); Jennifer S. Lerner & Philip E. Tetlock, Accounting for the Effects of Accountability, 125 Psychological Bulletin 255–275, 256–259 (1999). Source

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2. Ziva Kunda, The Case for Motivated Reasoning, 108 Psychological Bulletin 480–498, 482–483 (1990). Source

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3. Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 University of Chicago Law Review 511 (2004), especially 511–514 and the experimental discussion beginning at 523. Source

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4. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell Law Review 1, 13–15, 29, 36–37 (2007). Source

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5. Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?, 93 Texas Law Review 855, 876–880 (2015). The percentages are 102 of 234 and 154 of 257 judges answering the forgery question; 17 of the 508 participants did not answer it. Source

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6. Terry A. Maroney, Why Choose? A Response to Rachlinski, Wistrich, & Guthrie’s “Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings

?”, 93 Texas Law Review See Also 317 (2015). Source

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7. Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 University of Pennsylvania Law Review 1251–1345 (2005). Source

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8. Drew Westen, Pavel S. Blagov, Keith Harenski, Clint Kilts & Stephan Hamann, Neural Bases of Motivated Reasoning: An fMRI Study of Emotional Constraints on Partisan Political Judgment in the 2004 U.S. Presidential Election, 18 Journal of Cognitive Neuroscience 1947–1958, 1948, 1954–1956 (2006). Source

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9. Russell A. Poldrack, Can Cognitive Processes Be Inferred from Neuroimaging Data?, 10 Trends in Cognitive Sciences 59–63 (2006). Source

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10. Zhuang Liu, Does Reason Writing Reduce Decision Bias? Experimental Evidence from Judges in China, 47 Journal of Legal Studies 83–118 (2018). Source

11. Frank Zenker, Christian Dahlman, Rasmus Bååth & Farhan Sarwar, Reasons Pro et Contra as a Debiasing Technique in Legal Contexts, 121 Psychological Reports, issue 3 (2018; first published online September 13, 2017). Source