The American Judges Association:

Making Better Judges®

Alan Tomkins, J.D., Ph.D.Judge Kevin BurkeJudge Steve Leben

September 24, 2013

Note: Opening video omitted.

Implicit Bias

• Implicit attitudes and stereotypes about social groups (e.g., age, gender, race)

• Operate below the radar—not aware of them

• Can affect behavior even by those who consciously strive to be fair and objective

Judges and Implicit Bias

Rachlinski & Colleagues (2009)

• White judges showed a strong white preference.• Black judges showed no clear overall preference.• Some evidence suggested effects on sentencing.• But some cause for hope: “[W]hen 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 so.”

Implicit Bias

Jury

Instruction?

As we discussed in jury selection, growing scientific research indicates each one of us has “implicit biases,” or hidden feelings, perceptions, fears, and stereotypes in our subconscious. These hidden thoughts often impact how we remember what we see and hear and how we make important decisions. While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them. As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make. Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.

Making Decisions: Traditional View

Careful Deliberation

Who Makes Bail Decisions?

“[T]he situation . . . depends on an enormous weight of balancing information, together with our experience and training.”

“[W]e are trained to question, and to assess carefully the evidence we are given.”How magistrates told researchers they assess bail

decisions.Dhami & Ayton (2001)

Making Decisions: Another View

Quick & Automatic

Dual System of Information Processing

• Reflective (Deliberate)– Analytic, slow,

conscious– Limited capacity

• Reflexive (Intuitive)– Automatic, rapid,

unconscious– Always working

Reliance on Automatic Processing

“Most of the time we solve problems without coming close to the conscious, step-by-step 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 problem-solving is intuitive.”

Brest & Krieger (2010)

Terry Maroney Said We’d Talk About

Multitasking (The Daily Double)• Brain “multitasks” by rapid task

switching, not actually multitasking.

• Almost universally (97% of people), multitasking has a cost in performance.

• Practice does not make perfect. High media multitaskers were worse at task switching.

• Crash risk of using “hands-free” cell phone while driving comparable to DUI.

• Why we do it: It feels good.

How Do We Process So Fast?

• Reliance on Schemas (recognized patterns)

• Use of Heuristics (rules of thumb)

Schemas Based on Associations Learned Over Time

But Schemas Can Also Be Problematic

• Based on incomplete information – stereotypes (implicit bias)

• Resistant to change – confirmation bias

• Applied incorrectly

How Do We Process So Fast?

• Reliance on Schemas (recognized patterns)

• Use of Heuristics (rules of thumb)

Heuristics

• Mental shortcuts, approximations, rules of thumb used to make judgments quickly and efficiently

• Rely on only some of the information available– Example: Bail-decision study

• Often work (sometimes are better)• Like schemas, sometimes lead us astray

Examples of Heuristics

• Anchoring • Reliance on small samples• Framing • Hindsight

Are judges immune from common heuristic errors?

A Theory: Judges have been specifically trained to follow procedural rules designed to minimize the influence of irrelevant information.

Judges and Common ErrorsEnglich & Colleagues (2006):• Judges influenced by randomly determined

anchors (journalist’s question, prosecutor’s random sentence demand, judge’s throw of dice)

Guthrie & Colleagues (2001):• Judges exposed to anchor of $75,000 awarded

damages of almost 30% less ($882,000 average v. $1.25 million)

Recap

• Behaviors and decisions result from a combination of both reflexive and reflective processes

• Both are necessary (default-intervention model)

• Bring awareness to the extent of automatic processing

22

Weak Numbers on Some Key Principles

Intimidating

Underfunded

Inefficient

Overwhelmed

Provide good customer service to people dealing with the courts

A good investment of taxpayer dollars

Provide equal justice to all

Fair and impartial

0 10 20 30 40 50 60 70 80

17

16

19

28

12

13

19

18

39

45

47

59

44

49

54

57

Very Well Total Very Well / Well

• Thinking about the (STATE) court system, please tell me whether, in your opinion, each of the following words or phrases describes the state’s courts very well, well, not very well, or not well at all.

Source: NCSC/Justice at Stake survey, June 2012 (MOE ± 3%).

Public Attitudes Toward the Courts

• Consider:– Depth of knowledge

• Only about half of people are aware that the United States Supreme Court can declare a statute unconstitutional.

– Views of our legitimacy as an institution• Ratings of all branches of government are lower than

normal.

A Quick Tour:Procedural Fairness

24

What Does Fair Mean?

• Outcome favorability: Did I win?• Outcome fairness: Did I get what I deserved?• Procedural fairness: Was my case handled

through fair procedures?

Lawyers vs. the Public: Predictors of Confidence

Source: California State Courts study, 2005.

Components of Procedural Fairness

• Voice• Neutrality• Respect• Trustworthy Authorities

Voice

• People want the opportunity to tell their side of the story and have their stories told to a judge who listens carefully.

Neutrality

• Decision maker is transparent and open about how decisions are being made.

• Gives an explanation in terms understandable by a lay person.

• Cites to relevant statutes, rules, or court policies.

Respect• Taking people’s concerns seriously

– Shows respect for them as people and as citizens who have the right to address the court about their issues.

• People come to court about issues that are important to them, irrespective of whether they have a strong legal case.– Judges need to explain why those concerns can or cannot be

accommodated in a legal setting.– The same concerns apply to court employees.

• Respect for their rights– Give people information about what their rights are.

Tell them how to complain to higher authorities.

Trustworthy Authorities• Studies of legal authorities constantly show that

the central attribute influencing public evaluations of judges is an assessment of the character of the decision maker (sincere, caring).– Are you listening to and considering people’s views?– Are you trying to do what is right for everyone

involved?– Are you acting in the interests of the parties, not out

of personal prejudice?

“At least this time, Kevin and Steve did not just make this stuff up.”

– Professor Alan Tomkins• J.D.• Ph.D., social psychology• Cool guy• AJA Award Winner

Social Science Research: Potential Implications of Feeling that Judges

Treated People Fairly• Nobody likes to lose…

– But when someone loses (“distributive justice”), those who feel like they have been treated fairly (“procedural justice”) evaluate a variety of factors significantly higher than those who do not feel that way.

• Feeling fairly treated increases overall trust and confidence in the judge/court– What does trust and confidence mean? Our research program

examines the components of trust.*– Meaning & Measurement )

*Supported in part by funding from National Institute of Justice (2008-IJ-CX-0022) and National Science Foundation (SBE-0965465, SES-1061635, SES-1154855)

Components of Trust, 2013: 14 Separable Trust ItemsUniversity of Nebraska Public Policy Center

• Items based on both institutional targets as well as institutional representatives (e.g., Court/Judge, City Hall, etc.); presented in alphabetical order in the slides that follow

• Adapted here for use by individual judgesAll items scored on a 1-7 Likert-type scale:

1 2 3 4 5 6 7

Strongly Disagree Disagree Somewhat

DisagreeNeither Agree nor Disagree

Somewhat Agree Agree Strongly

Agree

Care, Competence, Confidence, Cynicism

CARE 1. For the most part, Judge X acts out of concern for those who appear in court. 2. Judge X puts aside personal interests in order to make decisions that are right for those

who appear in court. 3. Judge X has the best interests in mind of those who appear in court. COMPETENCE 1. Judge X is competent to do his/her job. 2. Judge X is highly qualified. 3. Judge X has the skills necessary to do his/her job. CONFIDENCE 1. My confidence in Judge X is high. 2. Judge X performs court functions as s/he should. 3. I trust Judge X. CYNICISM 1. Judge X is out of touch with what’s going on in the community. 2. Judge X does not protect my interests. 3. Judge X is not representative of the community.

Dispositional Trust, Impartiality, Honesty/Integrity, Legitimacy

DISPOSITIONAL TRUST 1. I trust what most people say. 2. Most people try to be fair. 3. Most people try to be helpful. IMPARTIALITY 1. Judge X’s actions of biased. 2. Judge X acts in the interests of some groups over others. 3. Judge X is overly influenced by special interest groups. HONESTY/INTEGRITY 1. Judge X is honest. 2. Mostly, Judge X lacks integrity. 3. Even when it is difficult, Judge X maintains his/her values. LEGITIMACY 1. Judge X uses his/her power appropriately. 2. Judge X is a legitimate authority. 3. Fair procedures were used to seat Judge X.

Loyalty, Obligation to Obey, Process Fairness (PJ-related)

LOYALTY 1. I generally support Judge X, even when I disagree with

some of what s/he does. 2. I have respect for Judge X, even when I disagree with his/

her decisions. 3. I feel a sense of loyalty to Judge X. OBLIGATION TO OBEY 1. I feel I should accept decisions made by Judge X. 2. Good citizens will accept the decisions of Judge X. 3. Even in the face of personal difficulty, I would feel obligated to

accept the decisions of Judge X. PROCESS FAIRNESS 1. Judge X uses fair procedures to make decisions. 2. Judge X generally has been fair. 3. In general, I have been treated fairly by Judge X.

Respect, Shared Values, Voice (PJ-related)

RESPECT 1. Judge X treats people with respect. 2. Even when dealing with people who disagree, Judge X still

treats people with dignity. 3. Judge X respects my rights. SHARED VALUES 1. Judge X shares my values. 2. Judge X supports my values. 3. I share Judge X’s values about how the court should do its job. VOICE 1. Judge X listens to my opinions. 2. People have a say in Judge X’s decisions. 3. Litigants can influence Judge X’s decisions.

Trust & Confidence MeasuresConstruct Sample Items AlphaUnspecified Trust Lincoln City government can usually be trusted to make decisions that

are right for the residents as a whole..7-.9+

Benevolence Lincoln City Government cares about residents they regulate. .8-.9+Competence Most Lincoln City government officials are competent to do their jobs. .8-.9+Integrity Most Lincoln City officials lack integrity. (reversed) .6-.8+Voice Residents have a great say in important Lincoln City government

decisions..8-.9+

Neutrality Lincoln City government is overly influenced by special interest groups. (reversed)

.8-.9+

Respect Lincoln City government officials treat residents with respect. .6-.8+Legitimacy The Lincoln City government is a legitimate governing body. .6-.8+Loyalty Lincoln City government usually has good reasons for its decisions,

even when those decisions are not popular..7-.8+

Cynicism Lincoln City Government represents the values of people in power rather than the values of people like me.

.6-.8+

General Trust and Confidence Measures: Change over Time, After PJ/Fairness

Intervention with City Hall, Lincoln, NE

Procedural Fairness Measures: Change over Time

Correlations between Change in Trust-Related Constructs and Change in Support Variables:

Putting $ to PJ and Trust/Confidence

Legitimacy Loyalty Satisfaction Total programs funded

Total programs cost

TRUST & CONFIDENCE

Unspecified confidence .17 .18 .43** .13 .09 Trustworthinessa .21 .37** .41** .30* .23

Integrity .06 -.01 -.02 .18 .17 Benevolence .03 .29* .39** .22 .14 Competence .34** .44** .45** .26 .22

PROCEDURAL FAIRNESS

Voice .07 .02 .21 .27* .15 Neutrality .10 .19 .56*** .35** .27 Respectb .04 .07 .22 -.09 -.08

SUPPORT

Legitimacy -- .23 .09 .09 .02 Loyalty .23 -- .35** -.04 -.05 Satisfactionb .09 .35** -- .02 -.05

Making Better Judges®

• What can we do as judges to improve our performance so as to give people a justice system as good as the promise of justice?

• The AJA’s two-step plan:– Improved procedural

fairness– Better decision making

Making Better Judges®

• AJA White Papers– 2007: Procedural Fairness– 2010: Judicial Elections– 2012: Judicial Decision

Making[The papers in red were recently noted in a joint resolution of the Conference of Chief Justices and Conference of State Court Administrators urging courts to promote procedural-fairness concepts. Pretty cool, huh?]

Mindful Decision Making Strategies

• Use decision aids (checklists, risk assessment instruments, benchcards)

• Seek feedback and foster accountability

• Formalize and critique decision heuristics

Physician’s Mindfulness Skills Can Improve Care for Patient and Provider

STOP Meditation

• Stop what you are currently doing• Take a deep breath and focus on the sensation

of breathing• Observe what you are thinking, feeling, and

doing, and • Proceed with new awareness

Procedural Fairnessin a Nutshell

• Was the person listened to?• Were litigants treated with respect?• Do they understand:

– What the decision was? – Why the decision was made?

• Neutral principles

Improving Individual Skills

• Evaluate the way you come across on the bench– One option: videotape– Another option: have a colleague observe you– Another option: have a communications professor

observe you• Work on mindfulness and decision-making skills

Judicial Attention Awareness Scale

• I find it difficult to stay focused on what’s happening in the present.

• I tend to focus on what I thought would be important in the hearing before it began.

• I find myself listening to someone with one ear, doing something else at the same time.

• People may think that I do jobs or tasks automatically, without being aware of what I'm doing.

More on Implicit Bias

www.ncsc.org/ibeducation

www.projectimplicit.net

Pam Casey, et al., 49 Court Review 64 (2013).

Measuring Fairness• Many courts (or judges) use the CourTools survey

prepared by the National Center for State Courts (Measure 1: Access and Fairness)– Sample questions (rate agreement on 1 to 5 scale):

• The way my case was handled was fair.• The judge listened to my side of the story before he or she

made the decision.• The judge had the information necessary to make good

decisions about my case.• As I leave the court, I know what to do next about my case.

[Note: Among the suggested strategies for “checking automaticity” are seeking feedback and fostering accountability.]

Measuring Effectiveness• Some courts have been willing to participate in studies

that measure the increase, if any, in compliance with court orders from improved perceptions of fairness– One Example: Hennepin Co. (Minn.) DV study (2004)

• Higher fairness ratings correlated with greater willingness to comply with court orders, even when the outcome was unfavorable.

• “Receiving an explanation from the bench made the biggest difference in terms of satisfaction for litigants who had a full trial and this effect was even stronger for those who did not get what they asked for from the court.”

– We need more courts to allow social scientists to measure effectiveness and report results.

More Data Will Be Reported Soon at ProceduralFairness.Org . . .

Proceduralfairness.org

Proceduralfairnessblog.org

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The Courthouse Environment

• Make your goals clear.– Everyone who comes to court should go away feeling

that they have been listened to and treated fairly.• Adopting fairness measurements—and repeating

them over time—shows the priority.• Work on skills improvement together with staff.

– HRDQ has a “Learning to Listen” program (available on the web or in a booklet) that could be done by judges, staff, or both together.

– What courthouse couldn’t use better listeners?

See you next year in Las Vegas . . .

Alan,Steve & Kevin