Thoughts on Misjudging Misjudging
5 Pages Posted: 26 Aug 2012
Date Written: 2007
There is much to admire in Chris Guthrie's paper, Misjudging, which appears earlier in this journal issue. By summarizing research on how judges make mistakes, and providing categories for the analysis of the types of mistakes they make - through informational, cognitive, and attitudinal blinders - he provides an intellectual prism through which to study what trial lawyers have always known: judges are human and possess the same foibles as the rest of us. Of course, those of us who have tried cases before them have often wondered whether their black robes and elevated bench, watching folks rise as they enter, and hearing themselves called "your honor" might exacerbate universal human failings by increasing the ingredient of self-importance.
Despite my admiration for Professor Guthrie's providing empirical and experimental backing for what the trial bar has largely assumed, I think the studies he cites and his conclusions are misleading in four different dimensions. Moreover, in my view, he does not show sufficient appreciation of the value of the traditional trial system to American democracy and to ADR, nor sufficient understanding of the American trial bar and why it eschews or embraces trials for certain cases. I will begin with the four dimesions in which I think Guthrie shortchanges reality, and then put it a plug - which I deeply believe - for our formal civil justice system.
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