Virginia Lawyers Weekly VA Lawyers Weekly
VIRGINIA BEACH — Data streams in, the wheels turn, decisions are made.
Day in and day out, judges have to decide: Who ran the red light, who gets custody, who’s telling the truth. Gut instincts help, but judges know training helps temper those instincts.
When a group of Virginia district court judges planned training sessions for this year’s annual Judicial Conference, some didn’t want another “touchy feely” program. Instead, the Conference offered a program all wrapped up in neuroscience.
Academic research shows everybody operates on assumptions and biases. That’s the way our brains function, according to Kelly Tait. Tait is on the faculty of both the University of Nevada and the National Judicial College in Reno. She offered a keynote program called “Information Processing and Judging: Welcome to Your Brain,” at the Judicial Conference of Virginia for District Court Judges in Virginia Beach on Aug. 8.
Tait told the audience of general district court and juvenile and domestic relations court judges that she wanted to give them “information that you can use,” that “you can start applying right away.”
Tait’s teachings show that humans are biologically programmed to process information quickly. Understanding that a tendency to generalize about people is a basic cognitive anchor helps to neutralize feelings of resistance and guilt. Realizing everyone is susceptible provides common ground for dialogue.
“I don’t think there’s been explicit training on implicit bias,” said Hampton J&DR Judge Judge Jay E. Dugger, a member of the Conference’s Judicial Education Committee, during an interview with VLW. “We all think in certain ways because of the complexity of the world. We all have to fill in the blanks. We all have to get a read on the world around us.”
“We are flooded with information,” Tait told the judge. The brain is built to look for patterns, to categorize and generalize, and to respond to categories.
But some of the brain’s fast-moving processes “can work against us,” Tait said. The bulk of brain activity processing sensory input goes on unconsciously. Tait used a series of simple tests to illustrate her point that people, including judges, need to learn ways of engaging the higher cognitive processes in order to balance the automatic processing.
In a slide show, Tait flashed the words “polk,” then “folk.” She asked the audience to complete the sequence by supplying the word for the white part of an egg. Most people automatically think “yolk.”
Another exercise, the “Stroop test,” showed words for color that were at odds with the color of the font displayed, for instance, the word “blue” was printed in brown. When people are directed to say either the word or its actual color, they have difficulty distinguishing the two.
A checker-board pattern test that’s enjoying a popular run on YouTube, www.youtube.com/watch?v=z9Sen1HTu5o&feature=related, illustrates how breaking down an image into component parts helps the viewer distinguish what appears to be a pattern of darks and lights, when in fact the squares are the same color.
But Tait also demonstrated how a “set up” can prime a person to approach a task in a more deliberate way, to get the frontal lobes to kick in. She starts by advising the task is “harder than it seems,” and the participant should take a minute and listen carefully to what she’s saying.
People are better able to use this conscious approach when they have low stress and a “lower cognitive load,” which refers to the load on working memory. Those conditions may be hard to come by in busy courts, Tait acknowledged.
“People are not as good at multi-tasking as they think they are,” she said. Judges can build in prompts that remind them to step back and reflect. One judge used a red dot sticker on the bench as a reminder to pause before jumping to conclusions.
Being able to process a wide range of social cues “applies to all kinds of groups” and goes “beyond diversity,” Tait said. It covers speech, clothing, tattoos, and all manner of socioeconomic indicators.
Working from generalizations has its place, according to Tait, but “often right” does not mean “always right.” Judges have learned they can’t assume a woman who has been hit by her husband won’t press charges, even if that’s happened frequently in the past.
But the brain wants to cling to the comfort of a pattern even when it’s confronted with contradictory evidence. “You’re not like the others,” the brain says when a particular individual does not conform to a stereotype.
Tait described strategies to help overcome the effects of implicit cognitive biases.
“Judges are taught to hear evidence, decipher facts, apply the law and reach decisions” by applying the law to those facts, Dugger told VLW. This kind of brain-training comes into play when the facts are all coming from witnesses, who may have their biases. “We have to be able to read that information and come to some conclusions,” he said.
Tait’s program “dealt with the ways all people make judgments and decisions, not just judges,” said Judge Gordon S. Vincent, of the Accomack and Northampton General District Courts. Tait “offered some specific techniques to use to avoid allowing bias or stereotyping to influence our decisions.
“Cognitive biases are normal processes,” Tait said, but it’s important to “stop and think.”
Strategies to overcome implicit cognitive biases
- Acknowledge “categorization” to yourself
- Deliberately “bump yourself up” into higher level processing
- Reframe what you’re perceiving
- Use objective measures
- Seek corrective feedback
- Examine the environment
- Be aware of the impact of your “cognitive load”
- Think about your thinking
