Yesterday I travelled up to Freeport to hang with the Maine Trial Lawyers Association (congratulations to PA's Dan Stevens, the new El Presidente), and heard a presentation by Sam Sommers, a psychology professor at Tufts, on hidden bias. He had previously given a presentation at Pierce Atwood, which I had missed, and had been such a hit that I wanted to see it for myself (and get my ethics CLE to boot). He was very entertaining and educational, and I was glad I went (and it's always nice to hobnob with the trial folks in the trenches).
This was not a kumbaya hectoring speech, but rather a scientifically oriented explanation of what's going on up there in our tiny little brain cells that we don't inuitively understand, which explanations I always find pretty fascinating. And the biases we're talking about aren't limited to the usual suspects (race, gender etc.), but other things that may be affecting your decisionmaking, but you just don't know about it.
Here's one example that I learned previously, which I think falls into this general category (before we get to discussing this particular presentation). When I was on the Board of Bar Examiners, I learned that we are unconciously influenced in grading by how good the essay was that you just read and graded before that one. So you've got to do something to diminish that impact – e.g. grade each exam twice, reviewing first in one order, then shuffling the pile so the order changes. You don't know that order is influencing you, but it is, so, now aware of this phenomenon, you need to take concrete steps to avoid that subconscious influence.
With that framing of our subject matter in mind, here are the takeaways I got from Professor Sommer's presentation; then we can muse about how we apply our new learning to the appellate world.
1. the easier your name is to pronounce, the higher status people will give you. So not knowing anything else, people are more likely to think that John Doe is hot stuff than Mr. Xct Querhtyuip.
2. An easier-to-read fact (through the contrast used, font etc.) is more likely to be accepted as true.
3. your subconscious biases (whatever they are) influence your judgment, and these expectations will color what you actually see. You are also more likely to fall back on these biases when the decision is subjective/discretionary and your decisionmaking muscle has been depleted and you are rushed and tired. (Cathy comment – There's lots of writing in this general field today – like a recent bestseller on the two types of decisionmaking we have from different parts of our brain and why it's so hard to kill a habit. So for example, cognitive behavioralists will tell you that if you want to lose weight you've got to structure your life so you have to make the fewest number of disciplined decisions a day as possible. Don't walk to work by the cupcake store. You don't want to be so discipline-depleted by the end of the day that you eat dinner like a refugee from the Survivor show).
4. Diversity of people working together in a group will, in the short run, increase conflict within the group and decrease communication, but the group will be more flexible and arrive at more creative results. You may be more comfortable in a non-diverse group, but in terms of results, a diverse group will perform better.
So how do we apply these teachings to that which really matters in the universe, i.e. appellate practice?
1. I suppose we can change our names, but otherwise this is a tough one. But I will extrapolate that the Bill Buckley fancy-pants vocabulary words in your brief should go.
2. This is just another reason to follow the fundamental brief writing rule, discussed in previous blog entries, of using the larger easier-to-read fonts preferred by courts, and not getting fancy with italics, underlining etc. Studies show that if you really want to emphasize something (and don't make a habit of it – that's shouting at the reader), then use bold face, nothing else. Make the brief as easy to absorb as possible – no typos, many short and snappy roadmapping headings, etc.
3. This is another reason to make your brief as concise and easy to absorb as possible. Often judges take that big pile of briefs home to read at night after a long day. Their decision-making muscles may be at a low ebb, and do you really want them, unbeknownst to them, deciding your case based on some subconscious who knows what? Yes, they are dedicated, concientious folk who can rise above obstacles, but why make it harder than it has to be? Make your brief as easily digestible as you can. Stretching this general concept to the oral argument, perhaps this is another reason to try to make yourself as invisible as a human being as possible – wear the boring black suit. It's not about you, and you don't want anyone subconciously making assumptions, subconcious or not, based on your appearance or any other distracting factor.
4. For this one, there have actually been relevant studies in the field. A judicial panel with a female judge is statistically more likely to find discrimination in a sex discrimination case, even if the decision is written by a male judge on the panel. Why? These psychologists think that when you've got a diverse group, it makes the antennae of everyone in the group go up and makes each perform at the top of their game, and less likely to default to hidden assumptions. I'd need more explanation to arrive at this conclusion (this was at the end of the presentation, so he was moving fast), but I do think the general diversity point underscores the value of panels, and trying to get different types of people, with different backgrounds, on them. Again, this is not necessarily or always a question of race or gender. Maybe not every justice on the Supreme Court needs to come from Harvard or Yale. Or maybe it's better if a court has a mix of folks from different practicing backgrounds – government, defense, plaintiff, small firm, big firm, etc. The point here is that diversity isn't good on these panels just because it's nice to have a breadth of experiences making the decision of the whole more informed than it could otherwise be. In addition, creating a dynamic in which people who don't look or think exactly like you do affects the decisionmaking process in ways that the participants may not even be aware of.
Food for thought.