The Psychology of the Parties: How a Judge Decides and What a Client Wants but Won't Say

A client came in with a clear brief: "I want the court to punish him." An hour into the conversation, it turned out he was really after something else: he wanted the other side to admit they had been wrong. Another hour later, it came out that the whole affair had humiliated him in front of his own family. No judgment will heal that on its own. One dispute, three layers, and each would call for a different strategy. Yet the client walked into my office convinced he wanted only the first.

In my experience this is no exception. Disputes rarely turn only on what the client brings to the first meeting. What we work out together later usually matters more. Across the table sits the other side in exactly the same position, and above both of them a judge who is not a machine either.

In my piece on psychology and tactics in legal disputes I wrote about looking at a dispute through the lens of behavioural economics and negotiation theory. Here I am interested in who actually makes the decisions in a dispute and how they reach them: the judge, the client, the other side and the lawyer. Stop treating them as rational actors and your chances of influencing the outcome improve.

¶ A Judge Is Not a Judgment Vending Machine

Nobody at law school says it out loud, but it is everywhere between the lines: the judge works like a vending machine. Put the facts in and out comes a judgment by the book. The research says otherwise.

Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich gave 167 US federal magistrate judges the kind of problems psychologists routinely use to demonstrate cognitive biases (Inside the Judicial Mind, Cornell Law Review, 86, 777, 2001). All five biases tested had a significant effect on the judges: anchoring, framing, hindsight bias, the representativeness heuristic and egocentric bias. On framing and representativeness they did somewhat better than laypeople; on the others they did about the same. In a follow-up, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding (University of Pennsylvania Law Review, 153, 1251, 2005), Wistrich, Guthrie and Rachlinski showed that judges struggle to put out of their minds information they are not allowed to consider, such as a demand made during a settlement conference or a plaintiff's prior conviction. And in Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings? (Texas Law Review, 93, 855, 2015) they documented that judges' decisions are also influenced by how sympathetic or unsympathetic they find a litigant.

The best-known study in the field comes from Israel. Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso analysed decisions of Israeli parole boards (Extraneous Factors in Judicial Decisions, PNAS, 108(17), 6889–6892, 2011). The share of favourable rulings fell during each session from about 65% to almost zero and recovered after the meal break. The study became famous as proof that a judge's hunger or fatigue decides the outcome. That reading is disputed, however. The order of cases was not random: the board tried to finish the cases from one prison before the break, and prisoners without legal representation tended to come up at the end of a session (Weinshall-Margel & Shapard, Overlooked Factors in the Analysis of Parole Decisions, PNAS, 108(42), E833, 2011). Andreas Glöckner used simulations to show that much of the decline can also be explained by favourable rulings taking longer, so that a judge will not start a case before the break that they could not finish (The Irrational Hungry Judge Effect Revisited, Judgment and Decision Making, 11(6), 601–610, 2016). On top of that, the theory of ego depletion (Baumeister, Bratslavsky, Muraven & Tice, Journal of Personality and Social Psychology, 74(5), 1252, 1998), on which the fatigue explanation relied, did not hold up in a preregistered replication across 23 laboratories with more than two thousand participants (Hagger et al., A Multilab Preregistered Replication of the Ego-Depletion Effect, Perspectives on Psychological Science, 11(4), 546–573, 2016). All that can safely be concluded is that the outcome may be affected by circumstances that have nothing to do with the case itself, such as its place on the court's list for the day.

There is no evidence that judges rule more kindly after lunch and more harshly before a break, and I would not build a strategy on the idea. Reasonable caution costs nothing, though. A judge has limited time and attention on a hearing day, and if your case comes up after a long and complicated one or at the end of the day, expect that there may be no room for a detailed argument. So write your submissions so that their core survives a quick read: key points first, a clear structure and no wall of argument in which what matters gets lost.

Besides biases, judges also have professional interests of their own. Stephen Choi, Mitu Gulati and Eric Posner examined what US federal district judges are after, and alongside publications and citations they tracked how often their decisions were reversed on appeal (What Do Federal District Judges Want? An Analysis of Publications, Citations, and Reversals, Journal of Law, Economics, and Organization, 28(3), 518–549, 2012). In my view judges differ here. One cares mainly about the decision surviving on appeal, another wants the case off the desk quickly, and a third looks for a question of principle in it. Each of them is best served by a slightly different submission.

¶ What the Client Wants: Position, Interest, Need

In the piece on psychology and tactics I mentioned the distinction between positions and interests introduced by Roger Fisher and William Ury of the Harvard Negotiation Project (Getting to Yes, 1981; co-authored with Bruce Patton from the second edition in 1991). On its own, though, it keeps the client on the surface.

Douglas Stone, Bruce Patton and Sheila Heen go further in Difficult Conversations: How to Discuss What Matters Most (1999, second edition 2010), a book that grew out of the same project. In their view every difficult conversation, and therefore every dispute, runs on three levels at once:

1. What happened. Who is right and who is to blame. This is the level the client arrives with: "I want them to pay the invoice." "I want an apology."
2. What the parties feel. Anger, fear, shame or a sense of betrayal. Czech legal practice tends to ignore this level, because emotions "have no place in the courtroom". They are indeed not a legal argument. But they affect willingness to settle, patience, willingness to testify and willingness to accept an economic compromise.
3. What the dispute says about me. "If I back down, I'm weak." "If I lose, I'll let down my father, who handed the business over to me." In my experience this is often where the outcome is decided, and economic logic takes a back seat.

John Burton described the same thing from another angle in his human needs theory (Conflict: Resolution and Provention, 1990). Behind many intractable disputes, he argued, lies a threat to basic needs such as recognition, identity or security. Interests can be traded: money for a concession, instalments for a longer deadline. Needs cannot. As long as a dispute threatens someone's identity, no material offer will put it out.

Friedrich Glasl added a nine-stage model of conflict escalation (Konfliktmanagement, 1980):

What matters about Glasl for a lawyer is that each phase calls for a different intervention. In the early stages facilitation helps, from about stage 5 mediation. Glasl places court and arbitration proceedings at stages 6–8, and at the highest stages only a power intervention from outside remains. Anyone who tries stage 2 tools at stage 7 will fail, however right they may be on the law. In my view this has an uncomfortable consequence: a lawsuit is a tool for the higher stages, and filing one at stage 3 can itself push the dispute several stages up.

¶ What the Client Says and What They Really Want

Chris Argyris and Donald Schön (Theory in Practice: Increasing Professional Effectiveness, 1974) distinguish two theories of action. One is what people profess when you ask them (espoused theory). The other is what actually guides their behaviour (theory-in-use). The espoused theory is the socially acceptable version of oneself. The theory-in-use is shaped by experience, identity and one's role in the family or the company, and people are usually unaware of it.

In a dispute this gap shows up all the time. The client says they want a settlement and then rejects every one that does not give them moral vindication. They say it is about the money and then turn down an offer that solves the money but brings no recognition. They declare they just want peace and quiet, and peace without victory gets them up out of their chair again.

It is sharpest in disputes over children. Parents fight for "the best interests of the child", and behind that slogan there may also be their own wound or anger at the former partner. The espoused theory then reads "I want my child to have everything they need", the theory-in-use "I want the other parent to feel what I feel". As long as that gap stays unspoken, no agreement will last long. Joseph Goldstein, Anna Freud and Albert Solnit, incidentally, proposed that instead of the abstract best interests, courts should look for the least detrimental alternative for the child (Beyond the Best Interests of the Child, 1973).

Argyris later described how hard it is even for very capable people to learn to question the assumptions behind their actions, not just the actions themselves (Teaching Smart People How to Learn, Harvard Business Review, 69(3), 99–109, 1991). For a lawyer, this means it is not enough to take the client's instructions and carry them out. I have to work out with the client what they really want. If I skip that, I may win a case that does not help them.

Between what the client wants and what they say lies one more thing: the story they tell themselves about the matter. And that story changes over time. Daniel Schacter (The Seven Sins of Memory, 2001) counts among the "sins" of memory the rewriting of memories in line with present attitudes, attributing information to the wrong source, and absorbing other people's versions of events. In dozens of experiments Elizabeth Loftus showed that misleading information given after an event becomes part of the memory (Eyewitness Testimony, 1979; for an overview, Planting Misinformation in the Human Mind, Learning & Memory, 12, 361–366, 2005). Two years into a dispute, a client remembers a meeting differently from how it went, without lying at all.

Add to that some well-known biases. We explain other people's behaviour by their character and overlook the circumstances, while for ourselves we tend to do the opposite (the fundamental attribution error; Ross, 1977). We take credit for success and blame failure on circumstances. Miller and Ross (1975) were still sceptical about this self-serving bias, but a meta-analysis of 266 studies showed it to be a strong and widespread effect (Mezulis et al., 2004). And we look for confirmation of our own hypothesis rather than for its refutation (confirmation bias; Wason, 1960). The client then reads every new piece of information so that it fits the story "I'm in the right". If the lawyer does not put the brakes on this tendency, a blind spot develops in which even winnable cases are lost.

¶ The Other Side: Why We Assume the Worst

Everything above applies to the other side as well. But there is an extra layer. Dean Pruitt and Jeffrey Rubin describe how the image of the opponent changes as a conflict escalates (Social Conflict: Escalation, Stalemate, and Settlement, 1986; second edition with Sung Hee Kim, 1994). A person with reasons of their own becomes an enemy, and the parties' goal shifts from doing well to hurting the other side. That simplification saves thinking and blocks any agreement.

Lee Ross and Andrew Ward added the concept of naive realism (Naive Realism in Everyday Life, 1996). We take our own perception to be a faithful picture of reality and see anyone who views things differently as biased, uninformed or ill-intentioned. Both sides then live in parallel realities and wonder why the other "just can't see the same thing". They can't. That is also why an offer one side considers generous can strike the other as a provocation.

Mnookin, Peppet and Tulumello (Beyond Winning, 2000) write about the tension between empathy and assertiveness: you need to understand the other side's view and be able to put it into words, without having to agree with it. In practice I have found three questions useful here:

• Why might the other side believe they are right? Seriously, without sarcasm. If you cannot answer, you have a blind spot.
• What does a fact we read differently mean to them? The same piece of evidence can carry a different reputational or personal meaning for each side.
• What hurts them more than we think? Many destructive positions stem from an injury outside the legal sphere. Spot it and you gain room where legal provisions cannot reach.

¶ Lawyers Have Biases Too

When I write about the biases of judges, clients and opponents, I have to be honest about my own profession too.

The first is the availability heuristic: we judge probability by how easily examples come to mind (Tversky & Kahneman, Availability: A Heuristic for Judging Frequency and Probability, Cognitive Psychology, 5(2), 207–232, 1973). For a lawyer, I think this means overrating scenarios they have recently lived through. Someone who has spent three years on cases where the court followed their arguments can easily underestimate the risk that next time it won't. A freshly lost case, on the other hand, raises their estimate of risk even in a case that is eminently winnable.

The second is overconfidence. That people trust their estimates more than their accuracy warrants was summarised back in 1982 by Lichtenstein, Fischhoff and Phillips in their review of calibration research. Philip Tetlock then spent two decades collecting forecasts from political and economic experts and found that they were more confident than their track record justified (Expert Political Judgment, 2005). For lawyers it was measured by Goodman-Delahunty, Granhag, Hartwig and Loftus (Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes, Psychology, Public Policy, and Law, 16(2), 133–157, 2010). On average, the lawyers estimated a 64% chance of achieving their minimum goal in a case, and they actually achieved it in 57% of cases. The most confident overrated themselves the most.

The third is the incentives that come with fees. A lawyer billing by the hour is in a different position from one on a flat fee or a success fee. I don't say this as a reproach; without fees there would be no legal profession. But the fee structure does influence which strategies get offered to the client, and the client can ask about it. The answer will tell them a lot.

The fourth is identifying with the case. After months of intense litigation a lawyer loses distance: the dispute becomes personal and winning a matter of honour. Professionalism lies in recognising this state in time and returning to a cool assessment.

¶ What to Do About It in Practice

1. The first meeting is not an interrogation. Asking "what happened and what do you want" produces the client's official version. Other questions get you further. What would have to happen for you to let this go? That shows you where their limit is. What would you be willing to do to have it resolved right now? That shows how much their identity is costing them. Who have you talked to about it and what did they tell you? That tells you what story they are cultivating around themselves and who is reinforcing it.

2. Map all three levels. Facts, emotions and identity. If any of them is missing from your notes, you have only part of the map.

3. Play devil's advocate. With the client and with yourself. What would the other side say? What do they see in the evidence that we are overlooking? Try to put the other side's version so that it sounds at least somewhat defensible. If you can't, your picture of the situation is incomplete. Treat the client's first account as a working hypothesis. The real material is in the documents, the emails, the timeline and in what the client did not say.

4. Check regularly what the client wants. In long disputes the goal shifts. Someone who wanted justice at the start wants it behind them after a year, and after two years wants to win even if it costs more than they can gain. Also ask what would make the client change their position. If they cannot answer, the dispute has turned into a battle over identity, and that needs a different strategy.

5. Write for a judge who is short of time. Key points on the first pages, a clear line of argument and no flood of information in which the main point gets lost.

6. Don't make an exception of yourself. Scrutinise your own biases as strictly as other people's, ideally with a colleague who is allowed to push back.

¶ Conclusion

The client from the opening came in wanting to see the other side punished and left knowing that what mattered to him was the wound he had suffered in front of his family. A dispute brings together the psychology of the judge, the client, the other side and the lawyer, and the client carries two within himself: the one he professes and the one he acts on. A strategy that overlooks any of them can rest on solid legal provisions and still fail.

The law matters, of course. It defines what can be won in court. Whether winning will help the client, and what they actually need, is not something you will find in it.

Related reading: on the irrational adversary, to whom economic logic does not apply, on why the law is not the only tool, and often not the best one, and on the four games played in court. I cover the practical side of negotiation in What litigation and business negotiation have in common.

¶ Further Reading

• Argyris, C., & Schön, D. A. (1974). Theory in Practice: Increasing Professional Effectiveness. Jossey-Bass.
• Argyris, C. (1991). Teaching Smart People How to Learn. Harvard Business Review, 69(3), 99–109.
• Baumeister, R. F., Bratslavsky, E., Muraven, M., & Tice, D. M. (1998). Ego Depletion: Is the Active Self a Limited Resource? Journal of Personality and Social Psychology, 74(5), 1252–1265.
• Burton, J. W. (1990). Conflict: Resolution and Provention. St. Martin's Press.
• Choi, S. J., Gulati, M., & Posner, E. A. (2012). What Do Federal District Judges Want? An Analysis of Publications, Citations, and Reversals. Journal of Law, Economics, and Organization, 28(3), 518–549.
• Danziger, S., Levav, J., & Avnaim-Pesso, L. (2011). Extraneous Factors in Judicial Decisions. PNAS, 108(17), 6889–6892.
• Fisher, R., & Ury, W. (1981). Getting to Yes: Negotiating Agreement Without Giving In. Houghton Mifflin. (2nd ed. 1991 and 3rd ed. 2011 with B. Patton.)
• Glasl, F. (1980). Konfliktmanagement: Diagnose und Behandlung von Konflikten in Organisationen. Haupt. (Assignment of interventions to escalation stages as in later editions.)
• Glöckner, A. (2016). The Irrational Hungry Judge Effect Revisited: Simulations Reveal That the Magnitude of the Effect Is Overestimated. Judgment and Decision Making, 11(6), 601–610.
• Goldstein, J., Freud, A., & Solnit, A. J. (1973). Beyond the Best Interests of the Child. Free Press.
• Goodman-Delahunty, J., Granhag, P. A., Hartwig, M., & Loftus, E. F. (2010). Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes. Psychology, Public Policy, and Law, 16(2), 133–157.
• Guthrie, C., Rachlinski, J. J., & Wistrich, A. J. (2001). Inside the Judicial Mind. Cornell Law Review, 86, 777.
• Hagger, M. S., Chatzisarantis, N. L. D., et al. (2016). A Multilab Preregistered Replication of the Ego-Depletion Effect. Perspectives on Psychological Science, 11(4), 546–573.
• Lichtenstein, S., Fischhoff, B., & Phillips, L. D. (1982). Calibration of Probabilities: The State of the Art to 1980. In D. Kahneman, P. Slovic, & A. Tversky (Eds.), Judgment under Uncertainty: Heuristics and Biases (pp. 306–334). Cambridge University Press.
• Loftus, E. F. (1979). Eyewitness Testimony. Harvard University Press.
• Loftus, E. F. (2005). Planting Misinformation in the Human Mind: A 30-Year Investigation of the Malleability of Memory. Learning & Memory, 12(4), 361–366.
• Mezulis, A. H., Abramson, L. Y., Hyde, J. S., & Hankin, B. L. (2004). Is There a Universal Positivity Bias in Attributions? A Meta-Analytic Review of Individual, Developmental, and Cultural Differences in the Self-Serving Attributional Bias. Psychological Bulletin, 130(5), 711–747.
• Miller, D. T., & Ross, M. (1975). Self-Serving Biases in the Attribution of Causality: Fact or Fiction? Psychological Bulletin, 82(2), 213–225.
• Mnookin, R. H., Peppet, S. R., & Tulumello, A. S. (2000). Beyond Winning: Negotiating to Create Value in Deals and Disputes. Harvard University Press.
• Pruitt, D. G., & Rubin, J. Z. (1986). Social Conflict: Escalation, Stalemate, and Settlement. Random House. (2nd ed.: Rubin, J. Z., Pruitt, D. G., & Kim, S. H., 1994, McGraw-Hill.)
• Ross, L. (1977). The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process. In L. Berkowitz (Ed.), Advances in Experimental Social Psychology (Vol. 10, pp. 173–220). Academic Press.
• Ross, L., & Ward, A. (1996). Naive Realism in Everyday Life: Implications for Social Conflict and Misunderstanding. In E. S. Reed, E. Turiel, & T. Brown (Eds.), Values and Knowledge (pp. 103–135). Lawrence Erlbaum.
• Schacter, D. L. (2001). The Seven Sins of Memory: How the Mind Forgets and Remembers. Houghton Mifflin.
• Stone, D., Patton, B., & Heen, S. (1999/2010). Difficult Conversations: How to Discuss What Matters Most. Viking / Penguin.
• Tetlock, P. E. (2005). Expert Political Judgment: How Good Is It? How Can We Know? Princeton University Press.
• Tversky, A., & Kahneman, D. (1973). Availability: A Heuristic for Judging Frequency and Probability. Cognitive Psychology, 5(2), 207–232.
• Wason, P. C. (1960). On the Failure to Eliminate Hypotheses in a Conceptual Task. Quarterly Journal of Experimental Psychology, 12(3), 129–140.
• Weinshall-Margel, K., & Shapard, J. (2011). Overlooked Factors in the Analysis of Parole Decisions. PNAS, 108(42), E833.
• Wistrich, A. J., Guthrie, C., & Rachlinski, J. J. (2005). Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding. University of Pennsylvania Law Review, 153, 1251.
• Wistrich, A. J., Rachlinski, J. J., & Guthrie, C. (2015). Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings? Texas Law Review, 93, 855.