Are Judges Biased in Divorce Cases?

The answer to this question is absolutely! Are they rational? No! This isn’t meant to be a knock on the judicial system. Even though judges (and all people for that matter) are biased and irrational, they don’t really know it. This is because they use what are called heuristics. A heuristic is a simplified approach to solving problems and making decisions. The decision may not be the most rational but it’s a decision based on the heuristics in place at the time. Here are some of the typical heuristics that all people use, but what are particularly important when it comes to a family law case:

1. Anchoring and adjustment – Describes the common human tendency to rely too heavily on the first piece of information offered (the “anchor”) when making decisions. For example, in a study done with children, the children were told to estimate the number of jellybeans in a jar. Groups of children were given either a high or low “base” number (anchor). Children estimated the number of jellybeans to be closer to the anchor number that they were given. Can you see how this impacts on spousal support or child support arguments?

2. Availability heuristic – A mental shortcut that occurs when people make judgments about the probability of events by the ease with which examples come to mind. For example, in a 1973 Tversky & Kahneman experiment (to learn more about these innovative thinkers click here), the majority of participants reported that there were more words in the English language that start with the letter K than for which K was the third letter. There are actually twice as many words in the English Language that have K as the third letter as those that start with K, but words that start with K are much easier to recall and bring to mind. Does past behavior predict future conduct? This is said a lot in family court but isn’t necessarily rational.

3. Representativeness heuristic – A mental shortcut used when making judgments about the probability of an event under uncertainty. Or, judging a situation based on how similar the prospects are to the prototypes the person holds in his or her mind. For example, in a 1982 Tversky and Kahneman experiment, participants were given a description of a woman named Linda. Based on the description, it was likely that Linda was a feminist. 80–90% of participants, choosing from 2 options, chose that it was also more likely for Linda to be: a feminist and a bank teller; than just a bank teller. The likelihood of two events cannot be greater than that of either of the two events individually. For this reason, the representativeness heuristic is exemplary of the conjunction fallacy. Consider the implications of this mental shortcut when it comes to custody issues ie: all men are … or all women are …

4. Familiarity heuristic – A mental shortcut applied to various situations in which individuals assume that the circumstances underlying the past behavior still hold true for the present situation and that the past behavior thus can be correctly applied to the new situation. Especially prevalent when the individual experiences a high cognitive load. Think about how this can impact when one parent has a history of alcohol/drug use or domestic violence?

These are just a few of the ways that judges use mental short cuts. When a judge is faced with a case load of over 1000 cases how else can the judge get through the case load but to apply some mental short cuts. That is why our unique and proprietary approach of DivorcEnomics™ is important to the consideration of how hidden human behavior can impact on the outcome of your case! Don’t become a victim but instead take charge. Call us today at 505-880-8737 or email us at Tough Lawyers for Tough Times.