‘Cognitive Traps’ Ensnare Judges Taking Instant Survey

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Judges and lawyers taking an instant survey with handheld devices Friday learned a disappointing lesson: Their decision-making is likely subject to errors and biases.

The findings don’t square with the group’s self-confidence. Sixty-five percent of those attending the ABA Annual Meeting session said they were better than average at predicting the settlement value of a case, and 76 percent said they were better than average at predicting when a trial court judgment would be reversed on appeal.

Why, then, was the group so bad at statistics? A statistical fact pattern involving warehouse workers and a falling barrel asked the audience to assess the likelihood that employee negligence caused the accident. Information was provided about how often the workers are negligent in securing barrels, how often negligently secured barrels break loose, and how often barrels break loose when safely secured.

Given four choices, 36.2 percent of the audience selected the worst answer. Only 34 percent got it right.

The group also suffered from a problem known as “anchoring,” which is the tendency to be influenced by suggestion when estimating an unknown number such as the value of pain and suffering.

A hypothetical described a case involving a school teacher who lost his arm in an accident. Half were told that the plaintiff offered to settle for $100,000, and the other half learned of a $10 million settlement offer.

A majority of the $100,000 group said a judge would assess the value of pain and suffering between $500,000 and $2 million. But a majority of the $10 million group went higher, saying the value would be between $1 million and $5 million.

The lesson for lawyers, said U.S. District Judge Andrew Wistrich of Los Angeles, is “the more you ask for, the more you get.”

For judges, the lesson is to beware of “cognitive traps,” said Bryan Garner, the president of LawProse Inc. and the author of a book on persuading judges.

The ABA’s Judicial Division was the primary sponsor of the program.

Annual Meeting 2008:

Read more news from the ABA Annual Meeting.

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