Thursday, July 15, 2004

Speeding Justice Part II

People have complained. My column is late once again. But what do you expect after my last column which appeared in March? You may recall the subversive theme which bound all the seemingly unrelated topics together: judges are human. They screw up just like everyone else. Clinging to the cliché that to err is human, I foolishly confessed to speeding on the insidious Pacific Coast Highway. A behemoth they call an SUV, sucking up gas, its insouciant driver on a cell phone, was poking along in the lane ahead of me. Jaguar and I had enough and we changed lanes and passed on the left just as a sheriff's deputy going in the opposite direction zapped us with radar gun.
Yes, I was speeding, but only for a short distance. All right, maybe I would have continued to speed, who knows? My admission engendered no more than a yawn from my readers. Not content to leave it at that, I acknowledged being caught, and the yawn gave way to contempt. Contempt morphed into scorn when I revealed the depths to which my self-respect had fallen. I owned up to the disgrace of receiving a speeding ticket. I did not even challenge the accuracy of the radar gun, which I learned in traffic school might have won the case for me. Somehow demanding that the officer show me his radar gun at the scene did not occur to me.
Justice William O. Douglas's imperfections were of mammoth proportions according to a recent biography, "Wild Bill: The Legend and Life of William O. Douglas" by Bruce Allen Murphy, Random House, 2003. So you can hardly expect perfection of me. So why was the column late? I could blame it on the beautiful Saturday I lost in traffic school at the Improv Comedy Club, a hole in the ground off an alley in Santa Monica. Instead of joining my classmates in the serious study of the subtleties and nuances of the Vehicle Code, I could have been composing this revealing column. But that is not the real reason for the delay.
To be perfectly honest, I was embarrassed by my results on the traffic test. In the March column I foolishly hinted at my expectation of receiving a perfect score. By now the prescient reader has deduced that I did not pass the test with flying colors. The damned test accounts for my carrying the "judges are human" theme over to this long-awaited column. Once again frailty meekly raises its bowed head. I expect to do much better on the make up-test.
The manner in which the test was given made the pressure unbearable. The instructor couldn't have just given us a written multiple choice test at the end of the class. Oh no, he had to go around the room and ask impossible to answer questions. I had legitimate handicaps. First of all, the current Vehicle Code is not the one I used when I was reigning king of traffic court back in the 1970's. Furthermore, the instructor had it in for me. He spent the first half of the course telling us how to beat traffic tickets. Can you imagine? Without revealing my true identity, I suggested that perhaps this was not the best approach to promote traffic safety. "Should we not own up to our traffic transgressions instead of devising ways to avoid punishment?" I asked innocently. Instantaneously, I became the class pariah. You expect me to do well on the test?
Try this question. When you turn left from an intersection into which lane should you go? Would not any reasonable person say, as I did, "the left lane"? Wrong. You can turn into any lane provided it is safe to do so. I wonder. When I have time I'm going to look it up. Do you know what color car gets the most tickets? I said, "red." Wrong again. It is white. Question--What color car gets the least traffic tickets? Answer--Black and White. Remember, this is comedy traffic school.
This experience has made me so obsessed with human error that I have come to believe I am responsible for the blunders of others. My wife ascribes this condition as a perverse form of megalomania. When I go to the bank and the computers are down, I apologize to everyone waiting in line for the teller. Shortly after my matriculation from traffic school, my self-confidence was somewhere below sea level. While in this fragile condition, I was leafing through West’s California Reporter when I came across something that caused me to post a sign offering a reward for information leading to the whereabouts of my mind. Before my eyes was a case that had been recently decided in my division. The majority opinion to which I had concurred, was written by Justice Perren. It was a typically good Perren opinion, but the dissent gave me a start. Justice Perren was listed as its author. I broke out in a cold sweat. First a speeding ticket, a humbling experience in traffic school, and now this.
One Perren and one Gilbert is one thing, but two Perrens and one Gilbert is out of the question. I confronted Perren and asked him if he had an alter ego on the loose. He said I was the closest he had come to having an alter ego and that another Perren would create a devastating identity crisis for both of us. As his self-appointed mentor, I had once suggested that a good appellate judge should be careful not to hold absolute views. I wondered whether Perren had taken my counsel too seriously. To my relief, he informed me that the publishing company had made a mistake. I took down the sign.
But I was still feeling a little shaky, but steadily improving. The dreams about headlines screaming "Ex traffic judge caught speeding" were recurring less frequently. On the premise that misery loves company, I felt whole again after receiving something interesting in the mail.
Federal Magistrate Judge Andrew J. Wistrich sent me his fascinating law review article which he co-authored with Professors Chris Guthrie and Jeffrey J. Rachlinski. It is titled, "Inside The Judicial Mind," Cornell Law Review, Volume 86, May 2001. Once you accept the basic assumption made by the title, the article tactfully reveals what the cynical among you may have suspected.
To quote from the introduction; "Judges, it seems are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment." Now that got my attention. Speeding on the highway is one thing, but speeding on the bench is quite another. The authors arrived at their conclusions after conducting an empirical study of 167 human federal magistrate judges who agreed to serve as guinea . . . I mean volunteers.
Like all humans, judges make many decisions on complex issues through what psychologists call "heuristics," a fancy word for "mental shortcuts." This in turn can lead to "cognitive illusions" which lead to errors in judgment. Oh dear! If the federal magistrate judges are an example, not just one, but five formidable cognitive illusions influence the way judges make decisions. They include: "1) anchoring, (making estimates based on irrelevant starting points); 2) framing (treating economically equivalent gains and losses differently) ; 3) hindsight bias (perceiving past events to have been more predictable than they actually were); 4) the representativeness heuristic (ignoring important background statistical information in favor of individuating information); and 5) egocentric biases (overestimating one's own abilities)." The latter is a trait I have observed in abundance.
Examples abound. Judges, like juries, may be influenced by an "anchor" when assessing damages. The request for a specific amount may influence the result by setting the standard of reference for the judgment. Higher requests may get higher awards. Framing the decision options can significantly influence the decision whether it be to help settle the case or decide issues. The study shows that in disputes over ownership of property, for example, the possessor of the property usually wins even when "possession is arbitrary." Arbitrary according to whom?
Judges, like everyone else, are prone to "hindsight bias," an illusion that one has the ability to have predicted past events before they occurred, and that others should have been able to do so. Easy to say after the event has occurred, but in reality often impossible to do. And of course there is that insidious "egocentric bias" which can be a blinder to the recognition of one's limitations. But the authors point out that overall the benefits of having a confident decisive judge are outweighed by an "occasional erroneous decision." Although an inflated belief in one's abilities may be the most difficult illusion to overcome, going to traffic school is a good step in the right direction.
"Inside the Judicial Mind" should be required reading for all judges. I would prefer lawyers not read it, but I'm sure they will with glee. So we are all human and subject to cognitive illusions. No system of justice is perfect, and Judge Wistrich and his colleagues have made us aware of our shortcomings. We are all human and from self-awareness of our human limitations comes the likelihood of better judging and more insight into our concept of justice. It also might make us safer drivers.

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