Magic, our minds and the rule of law

It is a fundamental premise of our legal system that legal process - courtroom adjudication in particular - is a reliable way to discern the truth among conflicting facts; and that justice results from the impartial application of ascertainable and certain legal rules by trained officials - judges - to those facts.  Faith in this premise is what sustains our belief in the rule of law and our willingness to entrust controversial and difficult decisions to courts and judges.

Of course, if we are honest with ourselves, we will acknowledge that lawyering and judging are human processes, and as such are necessarily somewhat fallible.  Perfection is a standard seldom achieved in any human endeavour.  But it is critically important to what I would call the the ideology of the rule of law that that we believe that the processes by which law is applied are reliable, that (for example) lies can be detected in cross-examination, that the best argument will always prevail, that a good argument is the best way to arrive at the truth, and that judges in particular are good at these things.

This faith in legal process is what underlies our reliance upon bills of rights.  A bill of rights takes a political value, such as free speech, which is generally accepted as necessary to sustain a free and democratic society, and turns it into a legal rule.  The rule is enforceable by judges. We assign courts the task of interpreting and applying that rule.  Why?  Because we trust judges.  Why do we have that trust?  One reason is because of their independence.  Judges have no stake in the game and therefore are not predisposed to favour one side or the other in any particular case.  But another reason why we give the task of applying the law to judges is because, as I have already said, we think they do a good job of it.  We believe that a courtroom is a good place to discern the truth; first by “finding” the facts; and then through processes that are objective, neutral, and impartial, deciding what the law is, and applying it to those facts.

If you accept all these things as true, as articles of faith, as it were, in our legal system, then you will be as interested as I was to see the title of an upcoming legal and medical conference sponsored by the Trial Lawyers Association of BC. It’s called, “Merging of the Minds: Understanding how the Neuroscience of Magic affects the Practice of Law and Medicine.” (www.tlabc.org)

Yep.  A law course called the Neuroscience of Magic.

Now before you think I am about to go on a rant about the Trial Lawyers of BC, hold your fire.   This is serious stuff.  The course is not just an excuse to spend a day away from the office; conference attendees will be eligible for continuing professional development credits from both the Law Society of BC and the UBC Faculty of Medicine.  But more importantly, this course promises to be a particularly interesting opportunity to learn about work that is being done across a number of disciplines - psychology and neuroscience in particular - that is demonstrating how the mind actually works, as opposed to how we used to believe it worked.  And what we are learning about the mind has all kinds of ramifications for legal process and, I suggest, our perspective on the rule of the law.

Now this is just a blog, and I am just an amateur at this stuff, but I want to give you some examples of this work, to illustrate what I am talking about.

First, the TLABC course itself.  The range of subjects covered in this one day course is broad, but one lecture looks particularly interesting.  It’s entitled, “Sleights of mind: what the neuroscience of magic reveals about our everyday deceptions”.  The lecturers are Stephen L Macknik and Susan Martinez-Conde, both researchers from Phoenix, Arizona, and they are authors of a book that has that same title.  I haven’t read the book, but I went to their website (www.sleightsofmind.com).  Allow me to borrow from the authors’ own description of their work:

• "Neuroscientists Stephen Macknik and Susana Martinez-Conde, the founders of the exciting new discipline of NeuroMagic ... have convinced some of the world’s greatest magicians to allow scientists to study their techniques for tricking the brain. Magic tricks work because humans have a hardwired process of attention and awareness that is hackable—a good magician uses your mind’s own intrinsic properties against you in a form of mental jujitsu. By understanding how magicians hack our brains, we can better understand how the same cognitive tricks are at work in advertising strategy, business negotiations, and all varieties of interpersonal relations. When we understand how magic works in the mind of the spectator we will have unveiled the neural bases of consciousness itself."

Fascinating stuff.  Not just because I’m interested in how magicians work, but because I am interested in what trial lawyers will do with these insights in a courtroom.  What they are supposed to learn is pretty clear: how to “hack” the brains of everyone else in the courtroom: witnesses, jurors, other lawyers, and yes, judges.  And so the question arises: is the courtroom a place where our faith in logic and reason is redeemed, or is it a theatre for a magic show?

You may think this is a one-off piece of enjoyable eccentricity.  It’s not.

Last Saturday I had the pleasure of listening to a fascinating panel discussion at a Canadian Bar Association conference in San Diego, California.  The subject of the panel was bias in judicial decision-making.  The panellists were Craig Jones, and Art Vertlieb.  Both are highly regarded lawyers: Mr. Jones is a law professor at Thompson Rivers University, whose research these days is focused on the psychology of advocacy; and  Mr. Vertlieb is president of the Law Society.  The panel discussion was based on an article that Mr. Jones published in the April 2013 edition of the Advocates Quarterly
entitled, "The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision Making".

The presentation consisted of a high level overview of recent psycholological research that is revealing how humans actually make decisions.

One example given is the phenomenon of decision fatigue.  This is illustrated by a study done of parole boards in Israel.  If I may borrow from an August 17, 2011 New York Times Magazine article by John Tierney (I didn’t make sufficiently detailed notes of Mr. Jones’ presentation last Saturday) what researchers Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University discovered after studying over 1000 parole board decisions was this:

• There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences. It was all about timing ... Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day. Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.

In other words, the outcome of these parole board hearings was not solely a product of rigorous fact-finding and rule-applying.  It was also the result of decision fatigue, the “hard mental work” of ruling on case after case.

For trial lawyers the implications of this work are pretty clear: don’t ask judges to make hard decisions at the end of the day.  If you can, plan your courtroom day so the hard decisions are made in the morning. But of course, the work of courts is not organized in a way that takes these considerations into account.  Rather, the assumption - the presumption - of our legal system is that, assuming the facts and the law are the same, courts will make the same decisions at 3 pm as they would at 10 am.  But that, it turns out, is not how we actually function.

Much of the work surveyed in Mr. Jones’ presentation would be familiar to readers of Daniel Kahneman’s  fascinating 2011 book, Thinking, Fast and Slow, and the equally fascinating works of Jonathan Haidt, a New York University professor who has written The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom (2006) and The Righteous Mind: Why Good People are Divided by Politics and Religion (2012).

It turns out, or at least it increasingly appears to be the case, that we are not the creatures of logic and reason that we have fancied ourselves to be.  Rather, we are repeatedly prone to biases and misconceptions.  We make our minds up, and then we search for reasons to justify our decisions.  We have a tendency to favour information that confirms the beliefs and hypotheses we already hold, which means we tend to disregard information that does not align with our preconceived notions of what ought to be true.  We like people who are like us and tend to distrust people who are not.  We are more apt to believe a statement if it is accompanied by a picture, even if the picture does not actually confirm the statement.  We are prey to “associative effects” which mean that our decisions can be made more conservative if they are made to follow some evocation of fear.  And our decision-making is affected by “presentation triggers” - the depth of our voice, the metre of our speech, our attractiveness, and so on.

And perhaps most importantly, most of the time, even if we know these biases exist, we are not actually aware they are operating.

Why are these presentations being made at law conferences?  Well the main reason is to inform lawyers so that they can use these tools more effectively in their work.  To speak in a certain way, to get their witnesses to dress nicely, to make certain kinds of arguments, and offer certain kinds of evidence.  To realize that a more attractive geologist may be more persuasive as an expert witness than an unattractive one. To use pictures in addition to words.  To conjure judges (and juries) into thinking in certain ways without them even knowing it.  In other words, to improve their chances of winning.

All of this is interesting - and useful, too.

But I am more interested in what it all means for our faith in the ideology of the rule of law.  If, as it is increasingly becoming clear, legal processes, legal reasoning, legal conclusions, are not quite so rational and objective as we have traditionally believed them to be, perhaps we should be a little more cautious - a little less triumphalist  - about them.  I have my own bias on this, to be sure.  I believe that in the long run social and human welfare will be better served if we deal with our most difficult problems in the political arena, rather than in a courtroom.  When we stop trying to turn all of our moral and political questions into legal rules.  So if it turns out that the legal process is just as human and just as fallible as politics, I think, well, maybe that’s progress.

Two more thoughts about civil justice reform

In my last blog posting I highlighted some of the important high level principles for justice system reform contained in two recent reports – The CBA’s Equal Justice report, and the Cromwell Action Committee’s Roadmap for Change.  My brief overview did not begin to do justice to the breadth and depth of the thinking in these two reports, but in the interest of continuing to prod this important discussion, I want here to make two further points.

I

First is the question of the role of courts within the overall civil justice system.  Here is what the Cromwell report has to say about that:

Access to justice has often been thought of as access to courts and lawyers.  However, we know that everyday legal problems mostly occur outside of formal justice structures.  This insight should lead us to fundamentally re-think how we approach legal problems in terms of preventing them from happening where possible, and when they do occur, providing those who experience them with adequate information and resources to deal with them in an efficient and effective way.…To borrow Richard Susskind’s observation, “it is much less expensive to build a fence at the top of a cliff than to have need of an expensive ambulance at the bottom.”

The phrase “fundamentally re-think” pretty well nails it, in my view.   If we took this statement seriously as a guide for action, the civil justice system would be radically transformed.  Courts and adjudication would have a role, but only one role, and by no means the central role, in a comprehensive continuum of services that actually addressed public needs for legal information, advice and problem solving. 

The phrase used in the Cromwell report is “court if necessary, but not necessarily court.”  There’s a nuance here that needs emphasis. That phrase, in my view, is not the equivalent of saying (as some do) that the courtroom should be the forum of last resort.  I don’t think it is the role of the courts to stand as the last bastion of access to justice only when all other avenues have been pursued and exhausted. Rather, I would suggest that there are some kinds of legal disputes and issues that properly belong, from the outset, in the court process.  And there are others – a great many others – that do not, and should never be there.

If you want to speak in terms of metaphors, I would reject the image of the funnel, which places courts at the bottom end of a bounded system into which all cases are poured, and choose instead the image of a toolbox, where the right tool is chosen to meet the different needs of different kinds of situations. 

To be plain, I choose this metaphor not just because it reflects the reality that different kinds of issues and disputes are better resolved through different processes, it also “de-privileges” the courtroom as the cultural focus point of the justice system.  Instead of being the centre around which all else is designed, and to which all disputes, sooner or later, are headed, courts are “just” another tool (albeit  a profoundly important and necessary one) in the toolbox of the justice system.

For a generation, lawyers have been trained to consider alternatives to court adjudication as a way of addressing their clients’ legal needs.  The catchphrase is Alternate Dispute Resolution, or ADR.  It encompasses processes like mediation, conciliation, arbitration and so on.  As a catchphrase it has served its purposes for a long time, because it has helped legitimize these other processes.  But I think it’s outlived its usefulness.  A truly fundamental re-think of the civil justice system would not see these other techniques for dispute resolution as “alternatives” to the courts.  Rather, we would re-orient the page from a vertical, hierarchical model of the justice system, with courts at the top, to a horizontal, linear model, where all options have equal stature.  Sounds a bit radical?  Well it is.  That’s what a “fundamental re-think” is all about.

II

My second point is this.  Most of the focus in justice system reform reports is on process and institutions.  This is enormously important.  But I would say that if we truly do want to make the justice system less “slow, complex and expensive” we also need to re-think our approach to substantive law-making.  At the risk of a gross over-generalization, let me suggest that laws are not often made with an eye to the practicalities of how they will actually operate in the real world.  This is particularly true of judge-made law.  When, for example, the Supreme Court of Canada decided in the Quebec Secession Reference (in 1998) that our constitution contained certain enforceable “unwritten principles”, it contributed inexorably to the increasing complexity, inefficiency and cost of the legal system.  There was no readily identifiable, closed list of these principles - how could there be? after all, they are “unwritten” - and no meaningful guidance on their application or effect, thereby making it impossible for lawyers to advise their clients and for citizens to govern their affairs. There is no better way to drive up the cost of the justice system than to make substantive law which is uncertain.  Of course, judge made law – and legislature-made law – is usually created to do justice.  But justice that cannot be obtained because the law cannot be applied is a poor sort of justice.  So as justice system reformers, let’s have an eye not just to our processes and institutions, but also to the laws themselves and see if it is somehow possible to make them simpler, clearer, and more easily applied.

Access to civil justice - two reports that ought to inspire real change

Two recent national reports on the urgent need for civil justice reform offer the promise – or at least the possibility – of a justice reform agenda that, for once, is not just about demanding more tax dollars for legal aid, but recognizes more broadly and more fundamentally that our civil justice systems, structures, processes and rules are not only failing the poor, they’re failing everyone.

Reaching Equal Justice: an Invitation to Envision and Act, was released by the Canadian Bar Association during its annual meeting this past August. (http://ow.ly/pIKLf) The other report, Access to Civil & Family Justice: A Roadmap for Change, was released this month by a group called the Action Committee on Access to Justice in Civil and Family Matters, (http://ow.ly/pILrF) chaired by Justice Thomas Cromwell of the Supreme Court of Canada.  I will call it the Cromwell report in recognition of the leadership role which Justice Cromwell has undertaken on this issue over the past several years.

Both reports are worth reading (and very readable).  My hope, of course, is that they are not just read, but are embraced and acted upon. 

Both reports argue that the justice system, if it is to function effectively, has to “put the public first”.  The Cromwell report even goes so far as to make this the first of its six guiding principles of change, saying,

We need to change our primary focus.  Too often, we focus inward on how the system operates from the point of view of those who work in it….The focus must be on the people who need to use the system…..Those of us working within the system need to remember that it exists to serve the public.

It is of course easier to say this than to make it real.  As the Cromwell report itself acknowledges, this is not just about changing rules and processes, but instead – and more fundamentally – entails a culture shift, a whole new way of thinking and acting.  Lawyers and judges are so accustomed to defending the justice system on a “we know better than you do” basis that it is really quite wonderful to see (in a report written by lawyers) such a clear statement of the need to re-orient our perspective to ask whether the system is actually meeting the needs and expectations of the people it exists to serve.  And this is not just one of the considerations that should be taken into account by reformers, but the first principle.

Each of the Cromwell report’s six guiding principles are just that: ways of orienting our perspective on justice system change that help frame every option or proposal in a way that, if realized, would make change meaningful and effective.  For example, principle two, “collaborate and coordinate,” reflects the reality that one of the single greatest barriers to an accessible justice system is its fragmentation.   A justice system that put the public first would not tolerate the silos that characterize its institutional arrangements and practices, and would look for ways to organize itself so that citizens did not need an undergraduate course in constitutional law in order to understand, when their marriage breaks down, which courts can make spousal support orders and which can grant them a divorce. 

Another important feature of both reports is the call for action.  For example, in a very fine turn of phrase, the CBA report suggests we need to “think systemically, act locally”.  In other words, “Every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion.”  We don't have to sit around and wait for someone else to fix the system for us. Even within the constraints of existing structures and rules, every day at the office presents a dozen opportunities for each of us to make the system work for the public interest, rather than against it. 

The sixth of the Cromwell principles asks for a focus on outcomes.  This has at least two important dimensions.  First is the idea that legal process is not an end in itself, but rather only matters if it produces fair and just results.  The statement that process is instrumental to result, rather than the goal of the system, is more transformational than the report’s authors themselves acknowledge.  Lawyers will usually tell you that the only guarantee of a just result is a just process, but this is nearly always stated as a self-evident truth, rather than an empirical proposition that deserves close scrutiny.  As the Cromwell report says, “Of course fair process is important.  But at the end of the day, what people want most is a safe, healthy and productive life for themselves, their children and their loved ones.”  This is a marvellous thing to find in a justice system reform report written by lawyers, a call to look beyond process to see whether, where, if and how, the justice system actually improves people’s lives.

The focus on outcomes also has a second dimension, the need for more and better metrics to help us see whether the justice system is actually achieving its goals.  Although there is a growing body of meaningful empirical evidence about the justice system, it is still the case that most of the arguments made in its defence are supported only by collections of self-evident truths, input/output measures and anecdotes. (Even an indicator as widely cited as the World Justice Project’s Rule of Law index, cited on page 3 of the Cromwell report, is based on a methodology which, stripped to its essence, is not much more than a highly sophisticated opinion poll.)   

As I said at the beginning, these are important reports, and I have really only begun to scratch the surface of their important insights and recommendations.  I certainly hope that they inspire a commitment to real change.  I can’t, however, close this commentary without making two more points.

First, the call for reform is hardly new.  When the Lord Woolf began his examination of English civil process in the mid-1990’s, he wrote, “the key problems facing civil justice today are cost, delay and complexity.”  In 1996 the CBA’s Systems of Civil Justice Task Force reported, “many Canadians feel that they cannot exercise their rights effectively because using the civil justice system takes too long, is too expensive, or is too difficult to understand.”  Nearly two decades later it’s disheartening to see the authors of the Cromwell report acknowledge, “There is a serious access to justice problem in Canada.  The civil and family justice system is too complex, too slow and too expensive.”

Plus ca change?  Are things worse, or better?  I say this not to deny the problems, but to make it clear that they have been with us for a long time, and yet notwithstanding the best of intentions of a generation of reformers, they are with us still.  These reports may be the catalyst for the real change that is urgently needed, or they may gather dust on the shelves.  I hope for the former, but I fear for the latter.  There are still powerful forces opposed to reform, people who argue that we should confront change rather than embrace it.  Theirs is, I believe, a view backwards, not forwards, but it is a view strongly held by many.

Second, both reports argue that the access to justice crisis is particularly acute for the poor, and that underfunding of legal aid is an issue that urgently needs attention .  There is no doubt that increases in legal aid funding would expand the reach of legal aid.  But I think – as I said at the beginning – that the crisis – and I believe it is a crisis - is more fundamental.  Cost, delay and complexity are problems with the system as a whole.  Solving these problems would benefit everyone.  What needs to happen, if justice system reform is to achieve anything meaningful, is not for governments to spend more to support the system as it is, but rather for all of us – politicians, judges, lawyers, court administrators, community groups, citizens, to answer directly the problems of cost, delay and complexity.  Put another way, what can we do to make our legal systems and processes “just, speedy, and inexpensive?” – to quote the language from the old BC Supreme Court rules.  That’s the question.  These reports don’t provide the detailed answer to that question, but they are, just as their authors have intended, invaluable invitations to envision and act, roadmaps for a way forward to a justice system that actually meets the needs of the citizens it is established to serve.