Are Judges Immune to Bias?

31 October 2017


How do you convince judges – who pride themselves on their ability to make unbiased decisions – that they too have unconscious biases that may affect their behaviour in (and out) of the courtroom?

Symmetra has been gratified by the success of its first unconscious bias workshop for judicial officers of the South Australia Magistrates Court. In a post workshop survey, 100% found the session a valuable leaning experience and 90% considered they could apply what they learned in day to day interactions.

For some years now, through our work with some of the leading firms of solicitors, barristers and the development of an online training module on unconscious bias for legal practitioners, we have gained valuable practical insights with respect to how and where biases emerge in the opinions and decisions of legal professionals.

However, designing this workshop for members of the judiciary presented a number of interesting challenges. Like any other humans the cognitive processes of judges predispose them to rely on intuition and heuristics in situations which really require slow deliberative reasoning. This is an inevitable consequence of the way in which human thought processes have evolved.

The context in which judicial decision-making occurs, however, is such that it is not possible to use analogies from everyday commercial decisions or even decisions which practising lawyers make. Judges do not make decisions about hiring and promotion; do not allocate tasks, duties or work projects to members of their organisations; do not work in teams (even in appeal cases) and do not have to make investment decisions for their work or decide how resources should be applied or expended. Ordinary commercial organisations can take measures to counteract bias through greater use of group decisions or by building checks and balances into their systems and protocols – but none of this is available to judges.

Judges who normally sit alone, assess the evidence placed before them by others and hand down rulings and judgments based on what they conclude is relevant to the decision at hand. They must train themselves to pre-empt bias by learning to identify points or areas of risk and then alerting themselves to avoid system 1 thinking where it is not appropriate. Furthermore, the practice of issuing written decisions would seem to be an inherent preventative measure against biased thinking.

The main thrust of this workshop therefore was to illustrate that intuitive thinking is an innate tendency which can impact our assessments or decisions in very subtle ways – it is not simply how we consciously stereotype people of a particular gender, ethnicity or social status.

Biases can impact on how probabilities are assessed or damages are calculated. Biases such as egocentric bias, anchoring bias and hindsight bias can feature unconsciously not only at the time of final judgement but also at interlocutory stages of proceedings. Participants in the workshop identified status quo bias as a particular risk: when faced with challenging decisions often our bias is towards the least risky option (albeit not necessarily the correct one) which is to leave things as they are.

Moreover it is not only their own biases of which judges need to be aware but also to be more sensitive to biases of others who appear in the courtroom: the litigants, the lawyers and the witnesses. These biases may arise from the way we perceive people different to us, or for other reasons.

The workshop also covered practical skills of bias avoidance specifically for people working independently. Magistrates were open minded and enthusiastic in co-designing tools for themselves to help them overcome potential biases in the future.

The project to develop a learning experience on unconscious bias for the judicial arm of the legal profession has given Symmetra valuable experience in extending the new boundaries of neuroscientific understanding into professions and industries which are not obvious candidates for this type of education. We will be positioned to pass on our new insights to our existing and future clients.