Tuesday, June 9, 2009

Negotiating Justice: Anchoring, Bias, Dad and Sotomayor

I do not recall the day on which I learned I spoke with an "American" or "West Coast" accent but I remember it coming as a surprise to me.  As Cristof, the director of The Truman Show says of his "creation," the happily oblivious Truman Burbank,  “We accept the reality of the world with which we are presented.”

The fact that people are still questioning whether a woman, an African American, a Latina or (gasp:  clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be "biased" by his or her unique perspective is dispiriting to say the least.  As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench.  Why?  Because white men "have no accent."  The dominant culture does not think of itself in terms of race (it doesn't have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender. 

Here's an example from the New York Times:  Speeches Show Judge's Steady Focus on Diversity, Struggle

WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.

She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.

Today is my father's birthday.  It is also the one-year anniversary of his death, so I'll ask you to forgive my stream of consciousness post.  I promise to tie it up in a bow by post's end. 

Dad -- a dust bowl refugee -- a lawyer at 42 and Bench officer by 52, used to say that there "should be dumb politicians, to represent the dumb people."  He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority. 

Was Dad's life-view affected by his humble origins, his "struggle" to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)?  You bet it was. 

Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench?  No.  Did he?  Yes of course he did.  Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting "marital" agreements for gay clients from the late '60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements -- African-American, Chicano (the term of that day), women and gays. 

Dad was a good guy aware of his biases and willing to push against them.  It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review -- Blinking on the Bench: How Judges Decide Case -- demonstrates. 

Below:  me and Dad, may he rest in peace.  9 June 1924 to 9 June 2008

I've had this article in my files for some time because it's about anchoring -- the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random.  Below is an excerpt from "Blinking" demonstrating the power of anchoring on judicial decisions.  Note the repeated use of the word "intuitive" - a word usually associated with women but not only a woman's talent or trait. (All emphases supplied)

The first example of intuitive judicial decision making arises from studies of a phenomenon that psychologists call ―anchoring.  When making numeric estimates, people commonly rely on the initial value available to them.100 This initial value provides a starting point that ―anchors the subsequent estimation process.  People generally adjust away from the anchor, but typically fail to adjust sufficiently, thereby giving the anchor greater influence on the final estimate than it should have.In short, ―the number that starts the generation of a judgment exerts a stronger impact than do subsequent pieces of numeric information.

We have found that anchors trigger intuitive judicial decision making. In one study, we demonstrated that a demand made at a prehearing settlement conference [$10 million] anchored judges‘ assessments of the appropriate amount of damages to award. . . . The $10 million anchor influenced the judges. Judges in the control group awarded a mean amount of $808,000 and a median amount of $700,000, while judges in the anchor group awarded a much larger mean of $2,210,000 and median of $1 million.107 Table 5 shows the impact the anchor had on their judgment.

In another study, we tested whether a motion to dismiss would also affect judges‘ damage awards. We presented participating judges with a similar fact pattern and asked judges in the control group, ―[H]ow much would you award the plaintiff in compensatory damages? We gave the judges in the anchor group the same background information, but also told them that ―[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000.‖ We asked these judges to rule on the motion, and then asked them, ―If you deny the motion, how much would you award the plaintiff in compensatory damages?

Because the plaintiff clearly had incurred damages greater than $75,000, we viewed the motion as meritless, as did all but two of the judges.Nonetheless, the $75,000 jurisdictional minimum served as an anchor and resulted in lower damage awards from those judges exposed to it. The judges who had not ruled on the motion awarded the plaintiff an average of $1,249,000 (and a median of $1 million), while those judges who ruled on the motion to dismiss awarded the plaintiff an average of $882,000 (and a median of $882,000).112 Thus, the $75,000 jurisdictional minimum anchored the judges‘ assessments, as they awarded roughly $350,000 (or nearly 30%) less on average.

Both anchoring studies suggest that the anchors had a powerful influence on judgment. This was true both when the anchor bore essentially no relation to the magnitude of the claim and when the judges knew full well that they were supposed to ignore the anchor. In both cases, the anchor triggered intuitive, automatic processing that the judges were unable to override.

This is what we litigators and trial attorneys do for a living.  We try to "anchor" judges.  We "spin" the facts and expand the outer reaches of the law in the way that helps our clients.  We read judicial profiles to know as much about a Judge:  his or her background; politics; charities; family life and prior decisions as possible so that we can  'speak his/her language./**  No one knows better than litigators and trial lawyers how important an individual judge's background, ethnicity, political affiliations and the like are.

When I was litigating a 9-figure environmental coverage action, I routinely brought color-coded coverage charts that represented my point of view to every oral argument.  Opposing counsel always griped and the Judge always overruled his objections because my charts made the complex and sophisticated coverage analysis easier to understand (from my point of view).  What perplexed me was opposing counsel's failure to ever do the same.  The Judge ruled in my favor on every major issue before her and I guarantee you it wasn't because I was "right."

(below, a sample coverage chart)


As you can see from the coverage chart example, it's not just numbers entering the negotiation environment that influence decision-makers, it's also the way in which the information pertinent to the case is characterized.  I don't need to tell lawyers this, all of whom were weaned on this proposition:  if you don't have the facts, argue and law and if you don't have the law argue the facts.

In Lax & Sebenius' brilliant 3-D Negotiation, they recommend "meta-anchoring" your preferred negotiation resolution as follows:

To meta-anchor effectively, look creatively at various ways to characterize the negotiation problem.  some characterizations have clear implications for the appropriate kind of resolution, or at least the most appropriate prcess and personnel needed to get there.  For example, framing a negotiation as "a routine extension of an existing deal" may receive far less scrutiny than approaching it as a "new contract," even when the substantive issues are identical.

The authors go on to describe a negotiation in which a small company seeking to be acquired by a larger one "identified two likely competing meta-anchors."

The first viewed the transaction as the purchase of R&DCo on a stand-alone basis.  the second Viewed the deal as an attempt to create synergy by combining R&DCo's technological expertise with Acquirer's sales, maketing and distribution; by using R&D's technologies in other markets; and by using the buyer's greater size to win new sales for R&DCo.  In this way, it would be possible to divide that synergy between the two companies.

The approach adopted was as follows:

"Almost monthly, we turn down an approach from potential acquirers who want to value us on a stand-alone basis.  We're interested in talking to you because of the significant poential synergy between our two companies.  If you want to discuss how we value and divide the joint gains from combining our companies, we're very interested in talking with you.  However, if you only want to consider our stand-alone financials, you'll be wasting our valuable time as well as ours.  Do you think it makes sense to proceed?

The small company re-defined its value as it's future value merged with the Acquirer rather than its present unmerged value.  Then the small company suggested that the expanded value be divided equally because that value was due to both company's contributions in equal measure.  That's "meta-anchoring" at its best.

So back we come to Sotomayor and her nomination to the Supreme Court Bench.  Will she bring a viewpoint heretofore unrepresented there?  Yes she will.  Does that give her an unfair advantage over all the highly qualified white men who might have been nominated in her place?  I suppose it might but our job in populating the Supreme Court bench is not to find the numerically "best" person for the job (highest LSAT score; first in class; editor of law review; most charitable; most acceptable disposition) but the best person to round out the current bench so that it is somewhat representative of the people that it serves.

Dad would have supported Sotomayor and on his birthday I'd like to thank him again for instilling in me the values that make me a supporter too.


**/  I heard Constitutional Law scholar and Dean of the new U.C. Irvine School of Law Erwin Chemerinsky speak at the annual Constitutional Rights Foundation dinner recently.  Rightly calling today's Supreme Court the "Kennedy Court," he admitted to pandering, saying "I'd put a photograph of Kennedy on my Petitions for Cert if I could."

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