Judges, unlike forensic experts, are too intuitive in their decision making and too little, deliberative and objective.

The facts, evidence and case law are considered in a dispute but then intuition kicks in – sometimes before the facts – and sneaky bias always lurks in the shadows.

To be fair, judges are human and often dealing with a full docket and a lot of issues.  They’ve got to work fast.  They perhaps can’t be expected to be completely objective like experts who investigate and opine on one issue – for example, the cause of a failure or accident in the built environment.

Advocates for the parties involved in a dispute are partial to their client’s interests, but that’s their job.

Considering the vested interests of the parties in a dispute, an expert must be objective and impartial.  If for no other reason but to serve as a touchstone for the judge when he or she drifts too far from deductive reasoning.

***

I concluded the above based on Ref. 1 and reading the legal references and studies in the Bibliography at least once, one paper twice and another three times.  How judges judge was the topic studied and reported on in this material.  However, I can imagine the findings apply a little to other arbitrators – human nature being what it is – like juries, the Arbitrators in ADR (alternate dispute resolution) and insurance claims managers and consultants.

***

I learned of this situation – too subjective, intuitive, biased judging – when I thought to include judging in an update of a recent blog on the similarities in engineering and medicine. (Ref. 2) I was prompted to do this on reading the judgement in a case for which I provided expert services.

I know now that I can’t do that.  There are few similarities between how judges judge and engineers engineer.

I got in touch with my client in the case (Ref. 3) and another in Toronto and asked for reference material on how judges judge.  I got the material in the Bibliography which is very good.

I read the material and was shocked to learn the extent to which intuition, bias, hunches, culture, etc. figure in a judge’s decision-making, in addition to objective deliberation.  Sometimes intuition figures almost exclusively.

It’s serious enough that people in law and related fields who study this situation must develop models and theories to try and understand and explain what goes on.  They’ve got to resort to the scientific method to get a handle on how judges judge.

Anything reflecting the scientific method, that is key to the expert’s work, was almost nowhere to be found in the decision-making. Too often the decision is intuited then evidence and case law sought to support it.

The cost of the judicial process seems to be part of the problem.  The dockets are often full and a decision takes time and costs money regardless of whether it’s intuitive, deductive or a mix.

However, regardless the cause, there does appear to be a real need for more deliberate decisions by judges if what I read is any indication.  Increased accuracy of decisions in dispute resolution – therefore justice and the fair settlement of claims – may be worth the cost of reform.  Justice depends on deliberation not intuition. 

In the meantime, experts must stay the course and be objective and impartial – as expected of us by the judicial process – and show the way forward for judges, and for arbitrators, in general.

References

1. Corbin, Ruth M., Chair, Corbin Partners, Inc. Toronto, Personal communication, March 30 and April 10, 2020
2. Differential diagnosis in medicine and forensic investigation, and soft, initial thoughts on cause.  Posted December 20, 2019
3. Christofi, Andrew, NDD Law, Halifax, Personal communication, April 1, 2020

Bibliography

1. Capurso, Timonthy J. (1998) “How Judges Judge: Theories on Judicial Decision Making,” University of Baltimore Law Forum: Vol. 29: No. 1, Article 2.
2. How Judges Make Decisions, Canadian Superior Courts Association, Ottawa, Ontario 2018
3. Read, Lucy, Arbitral Decision-making: Art, Science or Sport?  The Kaplan Lecture 2012
4. Guthrie, Chris, Rachlinski, Jeffrey J. and Wistrich, Andrew J. Blinking on the Bench: How Judges Decide Cases. Heinonline 2007/2008
5. Rachinski, Jeffrey, Guthrie and Wistrih, Andrew.  Inside the Bankruptcy Judges Mind. Boston University Law Review, Vol. 86:1227 2006
6. Corbin, Ruth M., Several examples of reasons for decision illustrating assessment of evidence 2020
7. Carlson, Nancy, Judgement and Decision Making. Presented to Ruth M. Corbin, May 2, 2017. Judges Should Not be in the Business of Defying Expectations