By: Dr. Ken Broda Bahm –
Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions. But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors. Case in point: lunch and snack breaks. Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break. In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience.
So here is the study: In a recent release on the National Academy of Sciences (U.S.) site, Professors Danziger, Levav and Avnaim-Pesso (2011) report on a study analyzing the results of 1,112 Israeli parole board hearings in front of a judge, in relation to the time of day those decisions were made. The graph below tells the story:
The vertical axis indicates the percentages of decisions made that are favorable to the defense (the prisoner, in this case), and the horizontal axis shows the sequence of those decisions throughout a given judge’s day. The dotted line shows the times the morning and lunch breaks are taken by the judge. So, decisions start out somewhat favorable to the defense, then decline steadily throughout the day…until the judge takes a break that is. Then, upon returning to work, the defense favorability returns to its original point, only to decline once more until the next break. The researchers systematically ruled out other factors: judges had no control over the sequence, and there was no tendency for “hard” cases to precede breaks or “easy” cases to follow them. All things being equal, defendants were simply better off having their arguments heard first thing in the morning or just after a break.
The explanation seems to be that at those times, the judges were “fresher,” and hence, more able and willing to resist the default judgment, which is to deny parole. But as the judge becomes progressively more fatigued by prior decisions, it becomes easier to rest on the default decision, instead of exerting the greater mental effort that would be required of a decision to grant parole. As Ed Yong writes in Not Exactly Rocket Science, “judges, even experienced ones, are vulnerable to the same psychological biases as everyone else.”
But moving to the question of, “Okay, so what do we do about that?” I’d suggest there are three important lessons that apply.
First, pay attention to the “cognitive load” you are placing on your audience. We are used to thinking about comprehension, whether our audience “gets it” or not. but it is less of a habit to think about how hard the decision makers need to work in order to buy into and apply our side of the argument. In any argument, there is a certain “gravity” pulling in the direction of the default side of the argument. It is easier for a judge to let stand a prior decision than to overturn it, and easier for a jury to distrust a defendant’s statement than to trust it. And that gravity isn’t always on the side of legal presumption – that is, it is probably easier for jurors to believe a plaintiff’s story that a corporation lied for financial benefit (because that is what people expect of corporations) than it is to believe the defense that it didn’t. The fact that jurors and judges are frequently able to overcome that default opinion is reassuring. It is nonetheless important to adapt to the fact that one side often needs to work harder than the other, because they are asking the audience to defy attitudinal defaults, and that bears a higher cognitive load.
Second, sequence your arguments so those with the greatest cognitive load are offered when your decision-makers are likely to be most fresh. Obviously, we can’t just choose to make all our arguments first thing in the morning or just after a break. If we know that one of our arguments is particularly demanding on our decision makers, then it helps to be flexible enough to address that argument when our audience isn’t already fatigued. It also helps to know the decision makers’ habits. Based on the pressures of the American litigation system, at least, judges are often working as hard or harder on other cases during their “breaks,” from your case. So, taking into account what you know about your decision maker, try to pair your most demanding arguments with your best opportunity for a fresh mind.
Third, adapt when you know your decision maker is likely to have a compromised cognitive load. It would be fantastic to present oral arguments only when we know our decision-makers are fresh, but that isn’t the reality. As the clock creeps toward 11:30 after a morning of tough oral arguments, your arbitrators may still be paying attention, but their likelihood of doing the really tough cognitive work may be slipping. When you know that you may be losing your audience in that regard, you can respond by simplifying and putting more explanatory effort into your argument than you otherwise would. You can also encourage deferred decision making, to prevent them from reaching a decision or a clear leaning at the moment. For example, you might suggest, “Before you decide this issue, I encourage you to review the daily reports for the months in question. When you do, you will see a pattern…” Essentially, you are offering a rain check on the heavy thinking that your position may require, allowing the decision maker to take a fresh look at it later.
Obviously, there is one other clear takeaway from this discussion of the parole board study: if you are reading this post in the library of an Israeli prison, then by all means, you should pray for a parole hearing that is first thing in the morning or just after break.
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Related Posts:
- Avoid Lockout: Address Judges and Arbitrators Persuasively
- When Faced With A “Hot Bench,” Keep Your Cool
Danziger S, Levav J, & Avnaim-Pesso L (2011). Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences of the United States of AmericaPMID: 21482790
Photo Credit: Larry Page, Flickr Creative Commons