"Minding the Court: Enhancing the Decision-Making Process" is a white paper of the American Judges Association.
Extract from Executive Summary:
Scientists carefully study how our brain processes information, though judges rarely consider these studies. But this research has great potential significance to judges, who spend much of their time making decisions of great importance to others. Although the study of how the brain processes information is an evolving one, the information now available can help judges to make better decisions.
Much of the processing for simple tasks—called reflexive processing—occurs in the background, while most of us solve riddles or math problems through reflective processing, which is deliberate and conscious. The reflective system has a limited capacity, so we operate on a principle of least effort, tending to rely on the reflexive system when possible. To do so, we often use what scientists call schemas, in which characteristics of objects, people, or behaviors coalesce into an easily recognizable pattern (like our ability to tell that a red octagon in the distance is a stop sign).
Heuristics are schemas that are based on only part of the information available— letting us make decisions more quickly. But heuristics can be faulty in a variety of ways. And since heuristics (like all schemas) operate in the world of unconscious, reflexive processing, we can easily make errors without recognizing the source of a faulty decision. Anchoring is one of these heuristics: for example, a person is likely to give a higher or lower estimate of damages if a particularly high (or low) figure is introduced early in the process. That number—even if far off the mark—tends to act as an anchor around which later estimates are formed.
Implicit biases, another type of schema, also threaten fair processes and just outcomes. They are based on implicit attitudes or stereotypes that operate below the radar, and judges have been shown susceptible to them as well.
But most behaviors and decisions result from a combination of both reflexive and reflective processes, so there are ways to lessen the effects of faulty heuristics and implicit biases. One step
is to understand some of the causes of diminished decision-making abilities, which include fatigue (like sleep deprivation), other depleted resources (like glucose levels), mood, fluency (i.e., ease of processing information), and multitasking. Fatigue, diminished resources, and multitasking all diminish performance. Fluent, easy-to- understand information will seem more accurate than more dense, hard-to-understand information, but that isn’t necessarily the case. And mood affects the way we process information, with those in a positive mood generally more likely to engage in reflexive, automatic processing and those in a negative mood more likely to engage in more reflective, deliberative processing.
Several techniques can help judges to be more mindful and aware of the decision-making process so that they make better decisions. First, focus on the higher purpose of the proceeding—hearing and properly deciding a case with a real impact on someone, not just processing a court docket. Second, formalize and critique heuristics used to make repetitive but important decisions. For example, a judge might consider what factors are leading to bail decisions or probation conditions: Are they based on accurate information? Third, be mindful and periodically “read the dials.” Are you tired? Is noise in the hallway a distraction? Is a break in order? Taking a break or engaging in even brief meditation can restore awareness and reduce stress. Fourth, decision aids, like checklists, can help. Doctors and pilots have shown that even well-trained professionals can improve performance by following checklists. Fifth, seek feedback and foster accountability. Judges often operate in isolation and without feedback. Competitive athletes improve performance through constant coaching and feedback, and judges can improve performance by getting objective feedback too.
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