(Un)Conscious Judging

By Thornburg, Elizabeth | Washington and Lee Law Review, Fall 2019 | Go to article overview

(Un)Conscious Judging


Thornburg, Elizabeth, Washington and Lee Law Review


Table of Contents

I.Introduction............1569

II.Defining "Inference" and Inference-Drawing.............1572

III. A Tale of Two Judges.............1575

A. Motion to Dismiss.............1576

B. Joinder of Parties and Claims.............1577

C. Discovery.............1578

D. Summary Judgment.............1579

E. Putting it Together.............1580

IV. Judicial Inferences in Real Life.............1581

A. Dispositive Motions.............1582

1. Pleadings Motions: Lewis v. Bentley.............1583

2. Summary Judgment: Chadwick v. WellPoint, Inc.............1586

B. Other Pretrial Rulings.............1593

1. Relevance and Protective Orders: Cazorla v. Koch Foods of Mississippi, LLC.............1596

2. Relevance and Burden: Kuttner v. Zaruba.............1602

3. Class Certification: Mielo v. Steak 'n Shake Operations, Inc.............1605

V.Judges and Heuristics.............1608

A. Introduction to Heuristics: Unconscious Shortcuts.............1608

B. Heuristics Affect Judicial Decisions.............1615

C. When Does Professional Expertise Intervene?.............1620

D. Implicit Bias.............1624

E. Cultural Cognition.............1631

F. Judicial Demographics.............1636

G. Summary.............1640

VI.Improving the System.............1641

A. Judicial Education.............1642

B. Deliberation-Prompting Practices.............1646

C. Procedure Rules.............1650

1. Pleadings: Stop Comparing Inferences.............1650

2. Summary Judgment: Consider Only Inferences in Favor of Nonmovant.............1653

3. Develop a Record that Supports a Richer Narrative.............1659

a. Pleadings.............1657

b. Discovery.............1659

VII.Conclusion.............1664

"[T]he test for determining whether an inference (from circumstantial evidence) is a rational one is stated in terms of mathematical precision but is one which allows the very greatest latitude in actual application. . . . [T]he authoritative language of nice and scientific precision in which such conclusions are cast is after all only the language of delusive exactness." - Fleming James, Jr.1

"We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own."

- Benjamin Cardozo2

Motivated cognition is "the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires."

- Dan M. Kahan3

I. Introduction

Inferences about facts are an integral and unavoidable part of civil litigation. As in life, much of what we "know" are conclusions, formed by drawing inferences from a collection of direct and circumstantial evidence. Juries, for example, are instructed that "[i]nferences are simply deductions or conclusions which reason and common sense lead the jury to draw from the evidence received in the case."4 At trial, then, juries perform the intertwined functions of deciding what evidence to believe, what inferences to draw (and not draw), and how the law applies to the facts it has found.5

Trials, however, are not the only stage in which inferences play a role, and judges, rather than juries, consciously and unconsciously draw inferences that will shape the course of the litigation and the parties' likelihood of success. This has long been recognized in the context of the pivotal pretrial rulings that take the case away from the jury: dismissals on the pleadings and summary judgment.6 Less obvious are the many other ways in which judges make decisions based on facts during the pretrial period, and the ways in which they employ inferences in doing so. Although they do not technically end litigation, decisions about issues such as discovery, joinder of claims and parties, and class action status can have an enormous impact on the viability and scope of litigation. …

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