A recent Harvard study, reported in the Washington Post, used computer analysis tools to deconstruct how Senators used their press releases. In addition to the categories of use they were expecting, they found something they were not; the researcher, Prof Gary King, “learned, to his amazement, that modern members of Congress spend about 27 percent of the time just taunting each other.”
I write here not to join the general gloating further revealing the emptiness of politicians, but rather to laud the tool.
These days, with digital transcripts prepared in so many cases, and with the capacity to use voice recognition for research purposes at very low cost even in those cases with only audio or video tape, it might be possible to use similar technology to analyze the patterns of interaction in the courtroom. (Remember, a few word errors in this kind of research do not matter, in contrast to the obvious risk in an appeal.)
We might be able in this way to get a much clearer picture of the forms of judicial engagement that occur in the real world, such as whether judges are asking questions, providing information etc., or whether they are cutting off litigants, and if so when.
In cases with lawyers, we might be able to detect patterns of objections, and even the rulings on those objections. In a more advanced stage, we might be able to correlate with court outcomes.
I would like to think that this would help show the increasing accessibility of modern courtrooms, and perhaps provide a public contrast to the unfortunately highly visible reality show hostility of the likes of Judge Judy. Over time, such research would help show the impact (or lack of impact) of judicial education programs.
In any event, the general point is that in the past, courtroom research has proved hard to do, partly because of the need to observe, and partly because of anxiety that it would focus on particular judges. This research would be comprehensive, making it easier, I would hope, to overcome anxiety and objections.
I would love to see Prof. Jim Greiner at Harvard Law cooperate with Gary King in the Faculty on arts and sciences, in a combined study of randomized outcomes with statistical analysis of the underlying proceedings. This would be particularly helpful because it may be that Greiner’s research on outcomes is best explained by the accessibility of the underlying proceedings — something that King might be able to measure.