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Reasonability is a core concept in the law, right up there with the idea of justice itself. It not only permeates negligence law, it underlies discovery law as well. For instance, a party in litigation, and the attorneys representing them, are required to make reasonable efforts to find relevant documents requested. They are required to make efforts that are good enough to be considered reasonable. But lawyers and litigants are not required to make efforts beyond that: not required to make super-human, stellar efforts, and certainly not perfect efforts.
Conversely, litigants and their lawyers are not permitted to make anything less than reasonable efforts to find the information requested. They are not permitted to make substandard, negligent efforts, and certainly not grossly negligent efforts. Let us not even talk about intentionally obstructive or defiant efforts. The difference between best practice and malpractice is where the red line of unreasonable negligence is drawn.
What is Reasonable?
What does it mean to be reasonable and to make reasonable efforts? The answer to that question fills a million legal volumes. It is the subject of countless judicial opinions and statutes. What is reasonable and thus acceptable efforts and what is not, and the dividing line between the two, can often be difficult to determine. It depends on a careful evaluation of the facts, to be sure, but this evaluation in turn depends on many subjective factors. These factors include prevailing social norms, personal values, prejudices, education, intelligence, and even how the mind itself works, the hidden psychological influences. They all influence a judge’s evaluation in any particular case as to which side of the acceptable behavior line a particular course of conduct falls.
In close questions the subjectivity inherent in determinations of reasonability is obvious. This is especially true for the attorneys involved, the ones paid to be independent analysts and objective advisors. People can, and often do, disagree on what is reasonable and what is not. They disagree on what is negligent and what is not. On what is acceptable and what is not.
All trial lawyers know that certain tricks of argument and appeals to emotion can have a profound affect on a judge’s resolution of these supposedly reason-based disagreements. They can have an even more profound affect on a jury’s decision. (That is the primary reason that there are so many rules on what can and cannot be said to a jury.)
Study of Legal Psychology
Every good student of the law knows this, but how many attempt to study the psychological dynamics of persuasion? How many attempt to study perceptions of reasonability? Of cognitive bias? Not many, and there are good reasons for this.
First and foremost, few teachers exist that have this kind of knowledge. The only ones that I know of are experienced trial lawyers and experienced judges. They know quite a lot about this but not from any formal or systematic study. They pick up information on the psychological underpinnings of justice by many long years of practice. They learn about the psychology of reasonability through thousands of test cases. They learn by involvement in thousands of disputes as to what is reasonable.
But that is not to say that is the quickest or best way to learn these insights. Perhaps there is an even quicker and more effective way? Perhaps we could turn to psychologists and see what they have to say about the psychological foundations of perception of reasonability. After all, this is, or should be, a part of their field.
Up until now, not very much has been said from psychologists on law and reasonability, at least not to my knowledge. There are a few books on the psychology of persuasion, which I made a point in prior years of studying to try to become a better trial lawyer. But, in fact, the field is surprisingly thin. There is not much there. It turns out that the two fields of Law and Psychology have not overlapped much, at least not in that way.
Perhaps this is because so few psychologists have been involved with legal arguments on reasonability. When psychologists are in the legal system, they are usually focused on legal issues of sanity, not negligence, or in cases involving issues of medical diagnoses.
The blame for the overly wide gulf between the two fields should fall on both sides. Most psychologists, especially research psychologists, have not been interested in the law and legal process. Or when they have, it has involved criminal law, not civil. See, e.g., Tunnel Vision in the Criminal Justice System (May 2010, Psychology Today). This disinterest has been reciprocal. Most lawyers and judges are not really interested in hearing what psychologists have to say about reasonability. They consider their work to be above such subjective vagaries.
Myth of Objectivity
Lawyers and judges consider reasonability of conduct to be an exclusively legal issue. Lawyers and judges like to pretend that reasonability exists in some sort of objective, platonic plane of ideas, above all subjective influences. The just answer can be discovered by deep, impartial reasoning. This is the myth of objectivity.
This myth continues to this day in legal culture, even though all experienced trial lawyers and judges know it is near total nonsense. They know full well the importance of psychology and social norms. They know the impact of cognitive biases of all kinds.
Experienced lawyers take advantage of these biases to win cases for their clients. They know how to push the buttons of judge and jury. See Cory S. Clements, Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Word,2013 BYU L. Rev. 319 (2013). Justice is sometimes denied as a result.
More often than not the operation of cognitive biases happen unconsciously without any puppet masters intentionally pulling the strings. There is more to this than just rhetoric and sophistry. Justice is hard.
Even assuming that the lawyers and judges in the know could articulate their knowledge, they have little incentive to do so. (The very few law professors with such knowledge do have an incentive, as we see in Professor Clements’ article cited above, but these articles are rare and too academic.) Moreover, most judges and lawyers are incapable of explaining these insights in a systematic manner. They lack the vocabulary of psychology to do so, and, since they learned by long, haphazard experience, that is their style of teaching as well.
Shattering the Myth
This is all background to explain why I was so pleased this week to see that one psychologist has finally taken the time to study these issues and share his insights. They are myth shattering to be sure, and thus will be unwelcome to some idealists. But for me this is a much-needed analysis. The psychologist who has dared to expose the myth, to lift the curtain, is not a lawyer too, but has worked with lawyers for over a decade on discovery issues. He has even co-authored a law review article on reasonability with two distinguished lawyers. Oot, Kershaw, Roitblat, Mandating Reasonableness in a Reasonable Inquiry, Denver University Law Review, 87:2, 522-559 (2010).
Yes, I’m talking about Herbert L. Roitbalt, who has a PhD in psychology. Herb did research and taught psychology for many years at the University of Hawaii, where, coincidently, he was friends with my brother George Losey, a professor of marine biology at UH. Only after a distinguished career as a research psychologist and professor did Herb turn his attention to computer search in general, and then ultimately to law and legal search, where he co-founded OrcaTec.
Schlemiel and Schlimazel
Herb has just written a small gem of a paper on law and reasonability. It is a must read for everyone, especially those who do discovery. The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN). I will not spoil the article by telling you Herb’s explanation of the Yiddish terms, Schlemiel and Schlimazel, nor what they have to do with reasonability and the law, especially the law of spoliation and sanctions. Only a schmuck would do that. Let me just say that I agree completely with his insights. They are insights that took me over 35 years to learn the hard way as a trial attorney and then discovery attorney.
Herb Roitblat’s article should be required reading for all judges and lawyers, especially new ones. Even those intelligentsia deep into the Sedona bubble should take time to study this. Understanding the many inherent vagaries of reasonability could, for instance, lead to a much more civil discourse on the subject of sanctions. Who knows, it could even lead to real dialogue and cooperation, instead of the theatre and politics we now see everywhere, even including the Sedona bubble.
Roitblat’s article contains a two-paragraph introduction to another important psychological factor at work in many evaluations of reasonability: Hindsight Bias. This has to do with the fact that most legal issues consider past decisions and actions that have gone bad. The law almost never considers good decisions, much less great decisions with terrific outcomes. Instead, it focuses on situations gone bad, where it turns out that wrong decisions were made. But were they necessarily negligent decisions?
The mere fact that a decision led to an unexpected poor outcome does not mean that the decision was negligent. But when we examine the decision with the benefit of 20/20 hindsight, we are naturally inclined towards a finding of negligence. In the same way, if the results prove to be terrific, the hindsight bias is inclined to perceive most any crazy decision as reasonable.
Due to hindsight bias, we all have, in Rotiblat’s words:
[A] tendency to see events that have already occurred as being more predictable than they were before they actually took place. We overestimate the predictability of the events that actually happened and underestimate the predictability of events that did not happen. A related phenomenon is “blame the victim,” where we often argue that the events that occurred should have been predicted and, therefore, reasonably avoided.
Hindsight bias is well known among experienced lawyers, and you will often see it argued, especially in negligence and sanctions cases. Every good lawyer defending such a charge will try to cloak all of the mistakes as seemingly reasonable at the time and any counter-evaluation as merely the result of hindsight bias. They will argue, for instance, that while it may now seem obvious that wiping the hard drives would delete relevant evidence, that is only because of the benefit of hindsight, and that it was not at all obvious at the time.
Good judges will also sometimes mention the impact of 20/20 hindsight, either on their own initiative or in response to defense argument. See, for instance, the following analysis by Judge Lee H. Rosenthal in Rimkus v Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010):
These general rules [of spoliation] are not controversial. But applying them to determine when a duty to preserve arises in a particular case and the extent of that duty requires careful analysis of the specific facts and circumstances. It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done–or not done–was proportional to that case and consistent with clearly established applicable standards. [FN8] (emphasis added)
Judge Shira A. Scheindlin also recognized the impact hindsight in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al.,2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) at pg. 6:
While many treatises and cases routinely define negligence, gross negligence, and willfulness in the context of tortious conduct, I have found no clear definition of these terms in the context of discovery misconduct. It is apparent to me that these terms simply describe a continuum. FN9 Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct. That is a judgment call that must be made by a court reviewing the conduct through the backward lens known as hindsight. It is also a call that cannot be measured with exactitude and might be called differently by a different judge. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others, but willfulness involves intentional or reckless conduct that is so unreasonable that harm is highly likely to occur. (emphasis added)
The relatively well known backward lens known as hindsight can impact anyone’s evaluation of reasonability. But there are many other less obvious psychological factors that can alter a judge or jury’s perception. Herb Roitblat mentions a few more such as the overconfidence effect, where people tend to inflate their own knowledge and abilities, and framing, an example of cognitive bias where the outcome of questions is impacted by the way they are asked. The later is one reason that trial lawyers fight so hard on jury instructions and jury interrogatories.
My only problem with Herb’s article on the psychology of reasonableness is that it is too short. It leaves me wanting more. I hope that this is just a teaser to a full exposition of the subject by Dr. Roitblat. What we really need is a full-blown scholarly article, one that will encourage more psychologists to become familiar with the law and legal process. We need a full, systematic, detailed exposition. Herb has the right background and qualifications to deliver. I urge OrcaTec to give their chief scientist the time to write a full paper on this. The profession will appreciate it, I am sure. Resistance is futile.
We also need independent research in this area by full-time psychologists. Their findings could help guide reforms in the law, reforms that could make our justice system more fair and consistent and less subject to the whims of individual jurists. Herb, if not you, perhaps you could persuade some of your psychology colleagues to pick up the torch here?
The legal profession needs this kind of interdisciplinary cooperation. We have already benefitted greatly by the input of information scientists. Now we could use help from scientists in psychology, especially research scientists and those who study how decisions are made and the hidden impact of psychological processes. We need to have a much better understanding of all of the cognitive disorders and biases that impact legal decision-making.
Many lawyers are interested in this intersection and the benefits that might be gained by cross-pollination of knowledge. I have a life-long interest in psychology, and so do many others, some with advanced degrees. That includes e-discovery expert Maura R. Grossman, who has a Ph.D. in Clinical/School Psychology. A good discovery team needs the insights of both information scientists and psychologists.
The myth of objectivity must be exposed. Many naive people still put all of their faith in rules and the operation of objective, unemotional, Platonic ideals. The Schlemiel and the Schlimazel and the Psychology of Reasonableness helps shatter that myth. But myth shattering is not enough. It is just the beginning. We must study the reality of what is happening in our courts, especially in determinations of what is reasonable. Law is more than logic and reason. It is about people and by people. Lawyers and judges are human, all too human. We need to better understand the subjective influences and psychological processes at play in all judicial decisions. Only in that way can the cause of justice continue to advance.
© 2014 Ralph Losey. All rights reserved.