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Knowing the judge

07 Apr 2021 / Courts Print

Judge duty

‘Knowing the judge’ is as important to a litigator as the research and legal arguments presented, and can distinguish the ‘great’ practitioner from the simply ‘ordinary’. Here’s the science bit, explains Brian Barry

Before entering the courtroom, lawyers will carefully test their evidence and thoroughly rehearse how each of their factual and legal arguments will play out. But as every litigator knows, one of the biggest factors that will affect how they finally present their case will only be known on, or shortly before, the day: who is the judge?

Although litigation solicitors and their clients rightly expect whoever they appear before to be excellent, objective, and consistent decision-makers, judges are, of course, human.

This makes ‘knowing the judge’ as important a skill as any for the litigation lawyer; one that distinguishes the great practitioner from the ordinary. Yet what is it to ‘know’ the judge, and what is the measure of that?

Subtle factors

A growing and increasingly sophisticated body of research from a variety of academic disciplines has emerged in recent years, scientifically testing and measuring how subtle but very real factors beyond the law affect how judges judge.

Psychologists, political scientists and economists, among others, have demonstrated how psychological effects, numerical reasoning, implicit biases, court rules and processes, influences from political and other institutions, and new technologies can all affect judicial decision-making in different contexts.

Among the more memorable recent studies on what can make the difference in courtroom decision-making are those that have considered whether judges have had their lunch, the wavering fortunes of the sports team they support – or even, in one experiment on a group of German judges, how the roll of dice can affect sentencing decisions.

These striking examples aside, this scholarship has reached a level of sophistication and depth that makes knowing about it indispensable for the litigation lawyer looking to hone their skills of ‘knowing the judge’, and useful for judges who want to understand the science that speaks to their everyday experiences on the bench.

What kinds of insights can this research provide for the lawyer, the judge and the Irish judiciary as a whole?

Hindsight bias

In a negligence claim, a judge already knows about the harm that has come the plaintiff’s way. They must necessarily judge with the benefit of hindsight.

But, when evaluating whether the defendant’s conduct was actually negligent, can the judge push the tendency to think ‘that was obviously going to happen all along’ out of their mind?

Judges are undoubtedly cognisant of hindsight bias. For example, in high-profile litigation concerning the cervical screening programme (Morrissey v Health Service Executive and Others), both the High Court and Supreme Court reflected on how hindsight bias can lead to decision-making errors.

Nevertheless, might some judges sometimes perceive the connection between a defendant’s conduct and the plaintiff’s harm as stronger and more inevitable than it actually was when the harm occurred?

While some experimental studies point to judges’ impressive ability to suppress hindsight bias – particularly in criminal law matters – other studies suggest that, in negligence cases, the very fact of knowing the outcome can make a difference in judges’ evaluations of whether the defendant breached their duty of care.

Crunching the numbers

Two live issues for the Irish judiciary at the moment are providing guidelines for damages in personal injuries cases and for sentencing. These are situations where judges must crunch the numbers, converting the qualitative into the quantitative.

On 6 March, the Judicial Council adopted the Personal Injuries Guidelines. Damages caps are also on the cards after the Law Reform Commission concluded that the damages-capping model in the recently enacted Judicial Council Act 2019 meets constitutional tests.

Research on the effects that damages caps can have on judges’ numerical reasoning is worth considering. While caps will, of course, cut out the possibility of excessively high awards, studies demonstrate that they can also have the paradoxical effect of drawing the average level of awards higher than before their introduction, because the amount set by the cap itself serves as an anchor.

This is an example of the ‘anchoring effect’: when making a numerical judgement, people commonly rely on an initial value available to them.

Furthermore, those tasked with implementing new sentencing guidelines should consider research demonstrating how guidelines can influence sentencing patterns in inadvertent, unexpected ways.

Take, for example, the ‘framing effect’: the way a numerical value is presented or ‘framed’ changes a decision-maker’s perception of it. In the 1990s in Finland, the average length of sentences meted out for theft dropped after sentencing legislation was reframed to express sentences in days rather than in months.

Particularly intriguing are experimental studies where judges bravely serve as the judicial equivalents of lab rats. This research has reached a tipping point – it is methodologically robust enough for Irish judges to consider undertaking equivalent studies.

This could play a useful role in education programmes to be prescribed through the Judicial Council. In other jurisdictions where judicial training is more advanced, experimental studies have facilitated judges’ meaningful self-reflection on their practice and helped them to learn from each other in a systematic way.

This research could also inform the development of selection exercises used for recommending candidates for judicial office, should a new appointments commission be established.

Strong reputation

Despite recent controversies, the Irish judiciary continues to enjoy a deservedly strong international reputation.

While Chief Justice Frank Clarke’s tenure has been characterised by an emphasis on public engagement, perhaps a characteristic of the next chief justice’s tenure could be to fully embrace judicial scholarship and to apply it.

Although the picture this body of work paints may sometimes be pessimistic (although, not always – a recent study analysing over 5,000 decisions of the Irish Supreme Court indicated no evidence of political partisanship in decision-making), this research is fundamentally geared towards improving justice systems.

This research can help lawyers to be more categoric and certain in their advice, better able to respond to their client’s all-important question: ‘what are my chances?’ For judges and the judiciary, it will help them strive for better, fairer justice through more consistent decision-making.

It’s time to embrace it.

How Judges Judge: Empirical Insights into Judicial Decision-Making is published by Routledge.

Read and print a PDF of this article here.

Brian Barry
Dr Brian Barry is a solicitor and law lecturer at TU Dublin