HOW DO JUDGES THINK?
What do lawyers actually do for a living?
Well, we advise clients, draft documents, argue appeals, and the like—right? A part of our body burns up energy when we do those things. Not our arms, like a baseball pitcher or a farmer. We use our brains to do pretty much everything that a lawyer is called upon to do. We think for a living.
“Very profound, Moskovitz,” you say. “So what?”
OK, I’ll take it a bit deeper. What do we think about? Easy: what to advise a client, how to draft a document, which witnesses to put on, etc.
But there’s a thread that binds these thinking activities together. They all involve thinking about what someone else will think.
When you advise a client regarding what course of action to take, you think about what some decider—an IRS agent, a patent examiner, a judge, a juror—will think about it. When you draft a demurrer, you think about how your opponent and the judge will think about it. When you think about what evidence to submit, you think about how the jurors will think about it.
When you come down to it, that’s pretty much all we do: we think about how other people think.
We share this focus with a few other occupations. Advertisers and sales people are in the same bag. So are politicians. We all try to get into other people’s heads, in order to predict what they will do next.
It’s really hard to do. My hat goes off to lawyers who try cases to juries. They figure out how a collection of disparate lay people they’ve never met will think about witnesses, documents, jury instructions—and the lawyers themselves. The lawyers get to talk with prospective jurors for no more than a few minutes during voir dire, in a setting not conducive to candor and intimacy. And that’s about all the info they get—except for facial expressions during the trial. How the hell do they do it?
Anticipating how professional deciders in the legal system—judges and arbitrators—will think might seem a bit easier. As a group, they tend to follow “the law,” and experience tells us that they tend to see certain evidence a certain way. There are variations, of course, but we usually have a vehicle for flushing them out: a trial lawyer will interact with a trial judge—orally arguing motions, discussing proposed jury instructions, and dealing with evidentiary issues. That gives one a feel for how the judge sees the case—and how the judge might decide an upcoming issue.
I work in the appellate courts, where it’s not so easy. I get to interact face-to-face with an appellate judge only at oral argument—a short, formal, rather stilted exchange where candor isn’t always favored. Sometimes an appellate judge’s questions will indirectly reveal his or her true feelings about the case, but often Their Honors sit in silence.
When they issue their opinion, you read it carefully, and sometimes it is what it purports to be: the true reasons behind the ruling. But not always, you suspect. An appellate opinion is a collective venture, at least initially drafted by a law clerk, not one of the judges, and often the result of a compromise of conflicting views among the judges. Perhaps it speaks the complete truth for one judge, but not the others. Maybe the case turned on some issue of law, as the opinion says, but maybe some undiscussed fact tipped the scales.
I eagerly seek to learn what makes appellate judges tick, and what makes them decide cases as they do. I have former appellate judges on my team, and I learn a lot from discussing cases with them. And I read a lot. But I don’t find much written by appellate judges about what motivates their decisions. The singular exception is former Seventh Circuit Presiding Judge Richard Posner, whose Reflections on Judging and How Judges Think provides insights I haven’t been able to find anywhere else.
I’ll tell you what I’d really like. A pipe dream, probably, but what the hell.
I read both fiction and non-fiction. Non-fiction writers tell you what people think only by inference. “President Roosevelt did this, said that, and wrote something else, so he probably thought _____.” The best non-fiction writers do this well, but they still can’t get inside the subject’s head and tell us his actual thought processes—all the way from initial consideration of a problem to final decision.
But fiction writers can do exactly that. They can make up a character’s entire thought process, and then present it as a sort of internal dialogue within the brain. Done well, it’s very convincing.
My favorite fiction writer in the adventure genre is C.S. Forester—a Brit born in Cairo and raised in London, who spent his final years in Berkeley. He wrote mostly stories about British (and a few American) wars during the 19th and early 20th centuries.
Forester’s ability to describe the thought processes of an army general, a navy captain, or even a common soldier or sailor was uncanny. In The Good Shepherd, for example, he recounts what a WWII destroyer captain thought about while protecting a convoy of merchant ships delivering supplies from the U.S. to Britain. After a German submarine torpedoes one of his flock, he considers whether to chase the sub. His mind quickly scans several worries. Does he have enough fuel to chase the sub and still make it to England? Might the sub turn and sink his ship? If he leaves the convoy to chase the sub, will the merchant ships be too exposed to attack from another sub? Does his second-in-command’s tone suggest resentment at an order the captain gave? If he orders all hands “to Battle Stations!”—will that sap his sailors of energy they might need later on? Is the captain himself getting too tired? Realizing that he hasn’t eaten during the past 12 hours of fighting, should he order some food? His quick, intuitive answers to these questions come seconds apart, cumulatively enabling him to make the best decision he can about whether to chase the sub. And he doesn’t even realize he’s doing this—Forester tells us that the captain is not a self-reflective sort of person!
Forester has written a kind of science fiction. Forester, the writer, climbs inside the captain’s brain—and watches the neurons fire one at a time, seeing the sequence of gears turning as the brain-owner can’t or won’t see it in himself. And Forester tells us what he sees! Wow. Kinda like that old movie Fantastic Voyage, where this important scientist has a brain clot, and some other scientists are shrunk down small enough to fit into a micro-submarine that journeys through the patient’s bloodstream to reach his brain to fix the clot. I want a micro-sub like that!
Short of that, I wish some appellate judge would write something like that about his or her own thought processes when deciding a single case. Step by step—from reading the appellant’s opening brief all the way through to drafting the opinion. I’ve never seen it, and maybe it’s too much to expect. Judge Posner tells us that, like Forester’s ship captain, most judges don’t reflect much on what they are doing. Non-fiction would be nice, but it might be hard for a judge to recall the exact steps in thinking that led to the final decision in a particular case. Fiction might be the best way to present an example of the type of thinking an appellate judge goes through.
Any takers?