Calculating Broad Economic Jobs and Tax Impact of Court Cuts — Bloomberg Businessweek Cites Los Angeles Study — Methodology, National Court Funding Campaign

Posted on May 2, 2011 by richardzorza

Bloomberg Businessweek has a useful story on the impact of court cuts on the overall economy.  As well as quoting Steve Zack (ABA President), David Boies (Prop 8, Microsoft and Bush Gore litigator) and David Udell (National Center for Access to Justice), the article discusses an interesting, useful, and very quotable 2009 study on the potential economic impact of the cuts that the Los Angeles Courts are suffering.

The Los Angeles Superior Court, the largest trial court system in the country, planned budget cuts of between $79 million and $140 million from 2009 through 2013. A 2009 study by the research firm Macronomics [oops, actually Microeconomics (firm link), see link to article] found that those proposed cuts could result in almost $30 billion in economic losses. The damage stems in part from layoffs at the courts but primarily from an estimated $6.3 billion in reduced legal fees and over $7 billion in losses at businesses, which have to hold reserves that can’t be invested elsewhere while their cases are still under way.

Presumably other courts could, as a very rough approximation indeed, use a similar multiplier for the economic impact of cuts in their states.

For what it is worth, the methodology of the article was to look at the fall off in legal services activity in LA during a prior period of cuts, and correlate it to those cuts, in comparison to ongoing growth in legal services in other markets .  The study showed that there was no fall in overall local GDP, even relative to the other legal markets, an alternative explanation of the drop.  I personally think that a better showing of the operation of mechanism would make this much more convincing.  After all, I would think that most legal billing has nothing to do with state courts, it is transactional, or in the Federal Courts.  A research survey of law firms would give information on this.

The study also looked at the impact on overall economic activity (likely to be much more influential on legislative and public opinion) by finding the average value of economic resources at stake in a case, and calculating the economic impact of having that money not available for higher risk (and therefore higher return) activities.  (A macroeconomic multiplier is also applied.)  As the article puts it:

We have measured damages associated with delays in dispute resolution as the difference between a normal return on these assets (i.e. which allows for risk and illiquidity) and a relatively low risk-free return. This reduction in return exceeds $7.1 billion through 2013. Using an economic multiplier model, associated economic output losses amount to approximately $15.0 billion, with more than 81,000 jobs eliminated and $873 million in lost tax revenue.

I think this more methodologically persuasive, but would want to get data on whether this is what really happens to money in these circumstances.   In total (all impacts, immediate legal services market and broader economic) they project 150,000 job losses and lost local and state tax revenue of $1.6 billion in the period from 2009 to 2013.  I do encourage people to read the study.  (A backwards study would help validate the methodology, we are now maybe getting close to halfway through the period of the projections.)

It would be nice is someone could generate a calculator that courts could use to estimate the economic impact of court cuts.  You would input certain local data, such as overall court budget, planned cuts, average amount at stake, and then software would project the impact.  While it might only be accurate as to perhaps order of magnitude, it would be of great value.

In terms of the strategy to try to protect court budgets, according to the Bloomberg article,  Boise is partnering with Ted Olson (his former opponent in Bush v. Gore, his current ally  in California’s Prop 8 gay marriage case) to engage corporations and others in the ABA’s national campaign to protect courts from raids on the budgetary resources they need.

The task force plans to explore new funding sources and gather data on court funding. More than anything, it hopes to influence the state legislators who control court budgets. The group plans “to make sure this info is presented to people who can do something about this,” Boies says. He points to an example from Missouri where, thanks in part to a coordinated lobbying effort by the general counsels of local corporations, the legislature in January passed the first pay raise for judges since 2008. While corporations carry political clout, so do lawyers and lobbyists, who gave over $200 million to state-level races in 2010, according to data from the National Institute on Money in State Politics.

I laud these efforts to protect our courts at this time of particular peril.  I do hope, however, that the courts, like all institutions, will also determine how to operate far more accessibly and efficiently.  I would like to see the debate as being about how courts can do a far better job of meeting the needs of all.  If that can occur, we will find the courts in much better political shape in the budget struggles of the future.  This should be a moment of intellectual and structural opportunity, not just a fight over funding for the familiar.    See, for example, the work of the National Center for State Courts on re-engineering.

Posted in Access to Justice Generally, Budget Issues, Systematic Change | Tagged | Comments Off on Calculating Broad Economic Jobs and Tax Impact of Court Cuts — Bloomberg Businessweek Cites Los Angeles Study — Methodology, National Court Funding Campaign

Recidivism Versus Redemption: Risk of Re-Arrest Falls Over Time, To Less Than in Overall General Population

Posted on April 29, 2011 by richardzorza

Obviously, risk of rearrest is a huge issue in terms of the steps that are considered appropriate to keep those with criminal records integrated into society.  NTY has a piece on the relative lack of rationality of many of the employment barriers and on legal attempts to reduce discrimination against those with records. Continue reading →

Posted in Criminal Law, Research and Evalation, Self-Help Services | Tagged | Comments Off on Recidivism Versus Redemption: Risk of Re-Arrest Falls Over Time, To Less Than in Overall General Population

Wayne Moore Part Two: Roles of ATJ Commissions, Pro Bono, LSC etc., and A Ten Year Vision

Posted on April 28, 2011 by richardzorza

This is Part Two of our NewsMaker Interview with Wayne Moore, author of Delivering Legal Services to Low-Income People.  Part One, here, included discussion of what Wayne has learned about how a system should be built, what components it should include, how to maximize impact, and what metrics can be used by programs for self-assessment and improvement.  In Part Two Wayne discusses the roles of access the justice commissions, pro bono, technology, and LSC, and gives his vision of what he sees happening in the next ten years Continue reading →

Posted in Access to Justice Boards, Access to Justice Generally, Forms, IOLTA, Legal Aid, LSC, Metrics, Newsmaker Interview, Pro Bono, Research and Evalation, Self-Help Services, Technology, Unbundling | 2 Comments

Finally Posted — Judges’ Journal Article on Self-Represented Cases: 15 Techniques for Saving Time in Tough Times

Posted on April 27, 2011 by richardzorza

This is long overdue, but I thought some of you might like to know that a list of ideas for how judges might respond to the increase in the numbers of self-represented, written by Judges Mark Juhas (of California), Maureen McKnight (of Oregon) and Associate Justice Laurie Zelon of the California Court of appeals, with myself, has now been posted on my website.  It appears as part of an article that I wrote on Courts in the 21st Century, which was published in the Winter 2010 Judges Journal. Continue reading →

Posted in Access to Justice Generally, Judicial Ethics, Self-Help Services, Systematic Change | Comments Off on Finally Posted — Judges’ Journal Article on Self-Represented Cases: 15 Techniques for Saving Time in Tough Times

Data, Decision-Making, and Eficiency — the Payoff Is Begining to Show and We Are Way Behind

Posted on April 26, 2011 by richardzorza

An important article in Saturday’s NYT is on the payoff from data-driven decision-making.  This is an area that has not been much studied in the past, and must be distinguished from the the different question of efficiencies from automating or providing tech support for underlying processes.  In other words, this is not about doing document assembly or webpages, rather it is about using data (including from such innovations) to direct and manage the delivery of services.

The Times article reports on a research paper, titled Strength in Numbers: How Does Data-Driven Decisionmaking Affect Firm Performance?  The abstract of the paper (which deals with the private sector) is as follows: Continue reading →

Posted in Funding, Research and Evalation, Technology | Tagged , | Comments Off on Data, Decision-Making, and Eficiency — the Payoff Is Begining to Show and We Are Way Behind

Wayne Moore Discusses His Comprehensive Vision for Legal Aid Programs — Part One of Our NewsMaker Interview

Posted on April 25, 2011 by richardzorza

Wayne Moore has been an access to justice leader for almost 30 years.  Two of his greatest achievements have been helping to conceptualize and operationalize the hotline and pro bono movements.  He has now drawn upon his long experience to write a book, Delivering Legal Services to Low-Income People, available online at https://www.createspace.com/3466223, or on Amazon. 

Perhaps the most systematic analysis of how to build an efficient high quality legal aid system ever written, it has a large number of ideas, all worthy of great consideration throughout our community.

Wayne has agreed to be our next News Maker interviewee.  There is so much of importance in the interview that we are posting it in two parts.  This is the first, in which Wayne discusses what he has learnt about how a system should be built, what components it should include, how to maximize impact on access, and what metrics can be used by legal aid programs for self-assessment and improvement.  The rest of the interview will be posted in a day or so, and will include his views on the roles of access the justice commissions, pro bono, technology, and LSC, and gives his vision of what he sees happening in the next ten years. Continue reading →

Posted in Access to Justice Boards, Access to Justice Generally, IOLTA, Legal Aid, LSC, Metrics, Newsmaker Interview, Technology | 4 Comments

Leadership — Telling Bad News

Posted on April 24, 2011 by richardzorza

The Albany Times Union’s Capital Connection Blog has posted NY Chief Judge Lippman’s video to the court staff on the impact of the 6% cuts imposed in the recently finalized state budget.

It’s really a model in terms of the obvious depth of the pain he shows to be bringing this news, his understanding of the human cost, his commitment to making the cuts in as humane a way as possible, and his ultimate emphasis on the importance and value of the work that has to go on

The really sad side of this is the level of viciousness against the courts in the comments on the blog.  It underlines how critical it is in these angry times for courts to do whatever they can to earn the understanding and loyalty of the people they serve.  I think those such as Judge Kevin Burke, who say we should see each litigant not as a burden but an opportunity to demonstrate our value, are dead on.  Notwithstanding financial pressures, this is even truer in tough times, and is yet another reason for keeping direct services to those without lawyers.

Posted in Budget Issues, Self-Help Services | Tagged , , | Comments Off on Leadership — Telling Bad News

Disclosing Conflicts of Interest May Not Result in More Neutral Information, or Appropriate Assessement of its Neutrality

Posted on April 23, 2011 by richardzorza

Its a truism that disclosure of conflicts of interest makes information more reliable and lets people make better judgments of its neutrality.  As this article in the NYT discusses, that may not be as true as we would like.

A solution often advocated for this lack of objectivity is to increase transparency through disclosure of conflicts of interest. But a 2005 study by Daylian M. Cain, George Loewenstein and Don A. Moore found that disclosure can exacerbate such conflicts by causing people to feel absolved of their duty to be objective. Moreover, such disclosure causes its “victims” to be even more trusting, to their detriment. [Note as to this second conclusion, see discussion below.]

Our legal system often focuses on whether unethical behavior represents “willful misconduct” or “gross negligence.” Typically people are only held accountable if their unethical decisions appear to have been intentional — and of course, if they consciously make such decisions, they should be. But unintentional influences on unethical behavior can have equally damaging outcomes.

Here is the full study.  The research was based on an experiment in which “estimators” estimated the value of a jar full on coins, based in part on advice from “advisors,” and in which pay-offs to the advisors varied between being based on accuracy and the size of the estimate itself.  In some cases the incentive to “advise” high was disclosed to the ultimate estimators, and in others it was not.  This is obviously more like a stock analyst situation than a legal one, but still analogous.  The full study reviews the literature as to psychological incentives in conflict of interest.

I read the abstract, below, as not being quite so firm as the NYT article about the extent to which people feel they can rely more on those who have disclosed their conflicts, although it is clear that the study does conclude that people underestimate the extent to which they must discount the advice of those who have disclosed conflicts.

Conflicts of interest can lead experts to give biased and corrupt advice. Although disclosure is often proposed as a potential solution to these problems, we show that it can have perverse effects. First, people generally do not discount advice from biased advisors as much as they should, even when advisors’ conflicts of interest are disclosed. Second, disclosure can increase the bias in advice because it leads advisors to feel morally licensed and strategically encouraged to exaggerate their advice even further. As a result, disclosure may fail to solve the problems created by conflicts of interest and may sometimes even make matters worse.

This is probably the key take-away (pasted from the study itself):

Disclosure, at least in the context of the admittedly stylized experiment discussed in this paper, benefited the providers of information but not its recipients. To the extent that a similar effect occurs outside the experimental laboratory, disclosure would supplement existing benefits already skewed toward information providers. In particular, disclosure can reduce legal liability and can often forestall more substantial institutional change. We do not believe that this is a general result—that is, that disclosure always benefits providers and hurts recipients of advice—but it should challenge the belief that disclosure is a reliable and effective remedy for the problems caused by conflicts of interest.

This all suggests (notwithstanding the caution as to generality in the above para)  that disclosure alone is far from enough.  If I were a lawyer with an expert on the other side (or indeed anyone with an interest) I would not want the disclosure to be voluntary, I would want to bring it out by cross examination, and I would want to be allowed to explore it in its detail, not merely as a general statement, and this study would hopefully help me explain to the judge my need (and right) to do so.

Much more broadly, this raises interesting questions about the impact of having a lawyer advocate for a client before a judge.  Do judges underestimate the impact of the interest of the client upon what the lawyer says to the court (an obviously inherently disclosed and assumed conflict)?  If so, this should not matter when both sides are represented, but might have a major impact when one side is represented. 

Indeed, this may provide some additional insight into why such cases are reported by many judges as being the hardest of all, and why judges feel so torn about how to respond.  We need more research into both what is going on, and what best practices will be most effective in maintaining neutrality.  It also supports the position taken in the civil Gideon debate that the presence of counsel on the other side is a major factor militating in favor of the need for counsel in order for a litigant to have full access to justice.  (No kidding disclosure:  I have tried, without success, to get additional funding to go into this area of attorney-on-one-side more deeply, as one of a number of “harder problems” in self-represented litigation in the courtroom, and may well do so again.  Of course the topic was included in the (funded) National Judicial Curriculum that was launched at a Conference at Harvard in 2007, and which I coordinated.)

Thoughts much appreciated.

Posted in Judicial Ethics, Research and Evalation | Tagged , , | Comments Off on Disclosing Conflicts of Interest May Not Result in More Neutral Information, or Appropriate Assessement of its Neutrality

Court Simplification — Steps to Reduce Costs and Intrustiveness of Family Investigators — An Interesting Pioneer Step By the Colorado Supreme Court

Posted on April 22, 2011 by richardzorza

As reported by the Colorado Bar’s Legal Connection Blog, the Colorado Supreme Court Chief Justice has modified, effective April 2011, the Directive on Child and Family Investigations, Chief Justice Directive 04-08.

As the blog summarizes the changes they will:

  • “Establish a cap of $2,000.00 for the investigation and report;
  • Require further order of the court and specific findings of extraordinary circumstances to justify fees and costs that exceed the cap;
  • Eliminate the CFIs authority to perform psychological testing or drug and alcohol evaluations;
  • Eliminate CFI quasi-judicial immunity in the order of appointment; and
  • Eliminate the CFI authority to conduct a meeting with parties when a protection order restrains such contact.”

I see this as an early response to the growing questioning of the cost, intrusiveness and appropriateness of relying on outside investigators, evaluators, etc., and consistent with a desire to “get back to basics” and “let judges be judges.”   This is also consistent with a sense that the use of such non-judicial personnel, far from speeding court processes and saving judge time, may be having the opposite effect.

See, Lawyer Skills Training for DV Representation: Tips from a Retired Judge,
12 Domestic Violence Report 1 (Oct/Nov 2006):

Mental health evaluations should be opposed in cases in which there are no issues of mental illness. Mental health evaluations and psychological tests cannot establish that intimate partner violence occurred or did not occur.  There is no diagnosis of violent intimate partner or victim of intimate partner violence. Lawyers should oppose evaluations also because evaluations delay the proceedings and increase litigation costs.

I declined to order mental health evaluations unless there were allegations of mental illness during the 16 years when I presided in the New York Family Court and Supreme Court. I was never reversed for making decisions in custody, visitation, and child protection cases without mental health evaluations.

Furthermore, victims of intimate partner violence may appear less stable than their violent partners because they are suffering from the emotional effects of abuse and fear of losing custody of their children. For these reasons, the test results may not provide accurate assessments of their parental capacity. Abusive partners, by contrast appear calm and self-assured [footnotes omitted]“

See also, generally, the National Council of Juvenile and Family Court Judge’s publication,  Navigating Custody and Visitation Evaluation in Domestic Violence Cases: A Judges Guide, at page 13 discussing when, in domestic violence cases, an evaluator is or is not needed or helpful.  “There will be cases in which the evidence is clear, and no further evaluation is necessary to determine that a child’s best interests will be served by granting custody to the non-abusive parent. That determination may be driven by a statutory presumption against granting custody or visitation to the abusive parent under such circumstances, or by the court’s own judgment after a broader examination of any violence or abusive behavior.”  The publication also discusses circumstances in which such evaluations are needed, and how to manage the process.)

Obviously research is needed on the impact of changes such as those being put in place in Colorado.  I hope Colorado will take the opportunity to research the impact of this change on costs, outcomes (including how often cases return to court), and public trust and confidence in the courts.  Maybe this is appropriate for an SJI Technical Assistance Grant (which has a low match requirement) to assist in such research.

Posted in Access to Justice Generally, Domestic Violence, Research and Evalation, Systematic Change | Tagged , | Comments Off on Court Simplification — Steps to Reduce Costs and Intrustiveness of Family Investigators — An Interesting Pioneer Step By the Colorado Supreme Court

Pro Se Clerks in the Federal Courts — A Base for Self-Help Innovation

Posted on April 20, 2011 by richardzorza

The Third Branch, with official news from the Federal Courts, has an interesting piece on pro se clerks in the Federal system.

The core point: the court staff put in place to deal with prisoner petitions are now working on a much broader range of cases.  As the piece puts it:

“So many of the skills pro se law clerks develop handling prisoner petitions come in handy in other types of pro se cases,” said Judge Catherine Blake in the District of Maryland. “Our pro se law clerks have developed forms and the instructions to go with them for pro se filers. They help pro se litigants navigate the system. They save chambers time with initial screening and help judges identify the cases that have merit. They also do a great job of keeping up with changes in case law. For instance, they’re familiar with the legal issues involved in habeas cases. They absolutely save us time and promote efficiency. ” In fact, in the District of Maryland, pro se law clerks are called staff attorneys to better reflect their status and level of experience.

This is a really interesting development, because it means that there is in place a base on which much more comprehensive services can be built.  It is similar to the story in California in which the family court facilitator program was leveraged to put in place the network of self-help centers meeting much broader needs.

My own view is that there are very significant differences between state and federal courts when it comes to solving the access problem.  Many federal courts are still very short of the kind of forms that are needed to obtain access — although it is great to hear that this problem is being addressed.  Moreover, it is my sense that many more self-represented  cases are being disposed of before a hearing or decision on the merits because of the highly complex procedural requirements in the Federal Courts.  As a consequence, it seems to me that some the most effective federal court programs are those that include one form or another of unbundled brief service advice.

During the Self-Represented Litigation Network EJC Pre-Conference on May 18 we will have a session exploring these topics.  There will also be a full session on Federal Court Self-Help Services at the EJC itself.

In particular, I hope we will be able to explore how state court self-help programs can reach out to the Federal Courts with an eye to closer collaboration in the enhancement of services in both of our systems.

Posted in Federal Courts, Meetings, Self-Help Services, Unbundling | Comments Off on Pro Se Clerks in the Federal Courts — A Base for Self-Help Innovation

Learning and Fonts — Bigger And Easier is Maybe Not Better — Should We Really Make Websites Harder to Understand?

Posted on April 20, 2011 by richardzorza

Counter-intuitive research reported in the New York Times raises some questions about how we design self-help materials.

A study to be published this year in the journal Psychological Science, led by Dr. Kornell, shows how strong this effect [The brain automatically associates perceptual fluency, or ease of storage, with retrieval fluency, ease of recall] can be. Participants studied a list of words printed in fonts of varying sizes and judged how likely they would be to remember them on a later test. Sure enough, they were most confident that they’d remember the words in large print, rating font size (ease of processing) as more likely to sustain memory even than repeated practice. They got it exactly backward. On real tests, font size made no difference and practice paid off, the study found [bold added].

And there is similar error in perceptions of the implications of font familiarity.

. . .[T]he researchers conducted a large experiment involving 222 students at a public school in Chesterland, Ohio. One group had all its supplementary study materials, in English, history and science courses, reset in an unusual font, like Monotype Corsiva. The others studied as before. After the lessons were completed, the researchers evaluated the classes’ relevant tests and found that those students who’d been squinting at the stranger typefaces did significantly better than the others in all the classes — particularly in physics.

“The reason that the unusual fonts are effective is that it causes us to think more deeply about the material,” a co-author of the study, Daniel M. Oppenheimer, a psychologist at Princeton, wrote in an e-mail. “But we are capable of thinking deeply without being subjected to unusual fonts. Think of it this way, you can’t skim material in a hard to read font, so putting text in a hard-to-read font will force you to read more carefully.”

I do not think this means that we should redesign all our websites to be as hard to understand as possible.  At a minimum, small and unfamiliar fonts will scare readers off, and even if they try to read, understand, and remember, they may start with more anxiety.

At a minimum, we should not be swayed by this research until we see it replicated with our target constituencies.

But the idea that you want people to work when engaging material is a very valuable one, and we should consider how to build sites that facilitate user investment in the process.  The trick, of course, is not scarring people away.  I think the way is to design interactive systems in which there is work required, but also immediate feedback.  Self-tests do that.  Asking people to repeat something aloud might do that (and be very helpful for court preparation.)

Ideas, please share.

P.S. Kate Bladow, in the comment below, links to an important study: “Jakob Nielsen has shown that low-literacy users don’t scan,” but rather read slowly and carefully.

Posted in Self-Help Services, Technology | Tagged , | 4 Comments

From Russia for Justice — Alternative Models for Access to Justice In Draft Bill

Posted on April 19, 2011 by richardzorza

Whether it is a message about universality, yet another underlining of how out of step we are in the US, but the Russian Ministry of Justice, we hear from the Access to Justice Blog, has published a draft law on legal aid, allowing regions to adopt different models.  Interestingly, this allows for three models, a salaried model, a private bar model, and a mixed model.  As the blog puts it:

In Russia the Federal Ministry of Justice announced publicly a Bill on Legal Aid. According to the draft legislation the regional governors can select one of two schemes of delivering legal aid to the people who qualify for it. Option one envisages the establishment of specialized offices staffed with in-house lawyers of the like of the Public Defenders Offices. Such offices already exist in some regions and cities and deliver legal advice and representation in civil matters. The alternative option is to contract and remunerate private attorneys on a case by case basis. In fact, the Bill on Legal Aid provides also opportunity for a model mixing elements of PDO and Judicare. Private entities such as law firms or offices of notaries public also can provide pro-bono legal advice and representation.

The Justice Ministry is also developing a “map” of legal aid, showing availability.

At a minimum this may all be helpful in striking some about the universality of need, and the parallelism of the choices in different systems.

Posted in Access to Justice Generally, International Models, Systematic Change | Tagged | Comments Off on From Russia for Justice — Alternative Models for Access to Justice In Draft Bill

Modest Means Project — Nice Model Collaboration to Fill a Big Gap

Posted on April 18, 2011 by richardzorza

Arizona has a nice modest means project that seems to work for middle income clients and attorneys.

Their website explains:

The Modest Means Project is a partnership program from the Arizona Foundation for Legal Services & Education and the State Bar of Arizona. The Project provides low-cost legal assistance to individuals who do not qualify for free legal services, but cannot afford the expertise of attorneys at the standard rate. The Modest Means Project assists individuals in a one-hour meeting for a fee of $75. In that meeting, attorneys can offer brief advice or unbundled services. A lawyer may offer full representation but it is not the expectation of the Modest Means Project. If full representation is requested, the Modest Means Project attorney can agree to offer representation beyond the scope of the Project’s one-hour consultation commitment, but must maintain the fee of $75 per hour.

While this may not solve every problem, it certain provides a system of cost limitation for clients, and helps lawyers tap the latent legal market.

The program received a “meritorious recognition from the ABA Standing Committee on the Delivery of Legal Services Brown Award for Legal Access.  (Descriptions of award winners here.)  Thanks to Will Hornsby, staffer for the Committee, for this information.

We need more programs like this, much better use of lawyer referral programs to guide people to such programs where appropriate, and much better ways to telling the public that there are lower cost options available.

Also, we need to find ways for people to become comfortable about choosing a lawyer, even when they do not know anyone who can make a trusted referral.

Posted in Access to Counsel, Middle Income | Tagged | Comments Off on Modest Means Project — Nice Model Collaboration to Fill a Big Gap

More Thoughts on The Study on Impact of Time After Meal/Break Upon Judicial Decision

Posted on April 16, 2011 by richardzorza

A few days ago I blogged on a scary study that suggested that the big variable in decisions where judges had a lot of discretion was how long after the meal/break the case was heard.  The study found a huge difference in parole decisions made by Israeli judges depending how soon after the most recent break for a meal the cases were presented.  Since the hearing order was determined by when the attorney arrived, it seems about as random as you can get.  (It might be that the better-prepared and more hopeful attorneys might arrive earlier in the day, but that would not explain the relationship of decision to position after the break, only after the beginning of the session.)

It appears from the statistical analysis that it is not so much the amount of time since the break, but the number of decisions made since the break that is the real factor.  In other words it is a form of mental exhaustion, rather than a general physical tiredness.  The authors note that favorable decisions took longer and were justified by longer written explanations (almost twice as long,  89.61 words on average, versus 47.36 words on average.)

After reflecting more, I have some theories for may be going on:

1.     Hunger/Mental Tiredness Reduces Risk Taking Decisions

This theory rings right to me.  When you are tired and hungry, you are less ready to respond well to crisis or problems.  One rational response is not to engage in behavior that increases the chance that you will need to respond to a crisis.  While any bad consequences from an erroneous decision will only show up long after the hearing, that’s not the way the subconscious works, so we may avoid long term risk just as much as short term risk, and theoretical risk just as much as real risk.

2.     Hunger/Tiredness Makes People Do the Usual Thing

This theory is closely related — at least in any anti-risk culture.  Explaining a deviation from the norm takes more energy.

3.     Hunger/Tiredness Increases Anger At Those Who Break the Rules

This also makes a lot of sense to me.  When you are irritated it is much easier to rush to judgment than to consider more sympathetic explanations of seekers behavior.  (Alternatively, feeling one’s own anger might make one feel it more likely that a parole seeker will act out his or her anger, and best be kept behind bars.)

4.     Hunger/Tiredness Makes Us Less Tolerant of Those Who Are Different

Given that the study did not report any different impact by race (Jewish/Arab) or gender, this might appear not to explain the data.

5.     Hearing Cases Reminds Judges of How Prone to Recidivism Parole Seekers are Likely to be.

Maybe, but that theory fails to explain why a break/meal resets the mind.  Maybe chatting with your colleagues reconnects you to a more humane point of view.

6.     When a Judge has Written a Number of Decisions, it is Hard for Him or Her to Find the Energy to Write a Longer One in Favor of Release.

This makes particular sense to me.  It fits particularly well with the suggestion from the data that the issue is not so much elapsed time, but number of decisions.  This theory could be tested by requiring more detailed explanations of decisions against the parole seeker.  If so, this would have an impact on the increasing tendency of appellate courts to require written findings before making certain kinds of orders (usually imposed at least in part as a disincentive, I suspect.)

Thoughts on Future Research

Of course almost any judicial or quasi judicial environment would be appropriate for such research — although care would have to be taken to ensure that ordering of cases was random, in many systems it is the opposite.  The bail decision is probably the one most similar to the situation in the Israeli parole study.   Moreover, many jurisdictions have good data about prior record, community ties, etc., collected in the bail recommendation process.  (Where a court staffer makes a recommendation to the court, there is also a question about whether the nature of the recommendation is impacted by when it is decided upon.)

It would be interesting to conduct such research, inform judges of the conclusions, and repeat the research.  The effect might well be reduced for a time, and then return.

It would also be interesting to take steps to reduce judicial tiredness, possibly by interspersing types of cases, or taking a short stretch break.

Posted in Judicial Ethics, Research and Evalation, Science | Tagged , | 2 Comments

Professor Tribe at LSC

Posted on April 14, 2011 by richardzorza

Yesterday Prof. Larry Tribe spoke at LSC to the Board and others.

Here are my own impressionistic thoughts of what for me were the highlights.

News on Replacement: Prof. Tribe reported that the process for replacing him is moving forward, that there is a short list, and that he hoped there would be an appointment in a “short period.”

Restrictions on Participation in Access by Non Lawyers, etc: He mentioned several times the need to look at making sure that the rules do not inhibit flexible and innovative use of non-lawyers, such as well trained students, and court staff, in appropriate roles.

Encouragement of Unbundling: He reiterated the need for encouragement of this cost efficient approach for access

The Need for System Simplification: He repeated the need for looking at the system and eliminating needless complexities, including removing barriers to access, such as the use of opaque language.  (He mentioned a sign in a court referring to “unrepresented litigants,” and the suggestion, adopted by the court, to change it to “people without lawyers.”

Pro Bono Untapped Resource: He highlighted the still largely untapped potential pro bono resources (including a reference to one lawyer at a large firm referring to a $100 million unused potential capacity at that partner’s firm alone.)

Senior Lawyers: He highlighted the hugely underutilized and enthusiastic pool of senior lawyers and the pro bono roles they might play, including as mentors, with their great experience.

Law Schools: He referenced a new focus on the role of law students and law schools as a source of access services. (There was a recent conference at Stanford.)

Funding: He joined in bemoaning the cuts indicated in the pending agreed-up Continuing Resolution, in noting the heightened impact because of the problems with IOLTA (despite the FDIC fix, which his office helped ensure), and suggested that thought might be given to longer-term solutuions such as, one day, maybe, taxation of services provided by lawyers.

Restrictions: He focused particularly on the damage and inefficiency from the outside funds restriction.

LSC’s Role: He mentioned the potential role of LSC in using its management and compliance activities to help shape the environment within which its grantees operate, particularly with respect to the kinds of efficiencies and improvements that innovations such as the above could provide.

The DOJ Access Initiative’s Role: He described the Initiative’s sucessful efforts with Federal agencies such as the VA, HUD, DOL, and Commerce (Broadband) to move forward access projects such as those dealing with foreclosure prevention, labor protections, and veterans rights, and the Broadband funding to show the potential uses of technology for access.

Best Practices: He encouraged the identification and promotion of best practices in access.

Access Commissions: He pointed, appropriately, with satisfaction to the passage by the Conference of Chief Justices of the Resolution in support of access commissions, and to the role the Access Initiative staff are playing in encouraging expansion to new states. (I was there, and this was clearly “but-for causation.”  Prof. Tribe’s speech led directly to the Resolution, which had not previously been on the Agenda in any form.)

Future of the Access Initiative: He suggested that the Initiative was more likely to survive past the current Obama presidency if organizations spoke up to underline the national importance of the issue. (He told a nice story about how people would stop outside his office to get a photo of the sign, sine it showed that for the first time that there actually was an office at DOJ focused on access to justice.)

All in all, just as reflective and transformative as you would expect from such an intellectual leader.

While we would all have far preferred that Prof. Tribe’s ten months at DOJ would have been far longer, there is so much to celebrate, both in the specifics of what has been achieved, and in the potential of the directions and sense of possibility that have been laid down for the future.  Thanks again Professor.

Posted in Access to Justice Generally | Comments Off on Professor Tribe at LSC