Monday, August 22, 2011

Decision Fatigue: What You Need to Know About Court Before You Go to Court.

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The New York Times
Do You Suffer From Decision Fatigue?

Thinking about taking that case to the Judge? Before you step foot in the Courtroom, be sure to read a most recent article by John Tierney in the New York Times Do You Suffer From Decision Fatigue? This article highlights the wear and tear that the act of making decisions through the day has on the mind. While we are all called on to make various decisions through the day, however making difficult is at the heart of a judge's job description. The article makes a case study of judges hearing Israeli parole cases. The writer shows that the outcome of the hearings in very similar cases produced very different results as the day wore upon the judges hearing the cases. Tierney shows that the act of making a decision actually drains the mind of energy during the day, even if the body cannot tell it is getting tired. The more decisions the brain is called on to make, the mind begins to take shortcuts. One shortcut is the brain becomes more reckless producing bad decisions such as e-mailing that tirade to all 140 co-workers. The other shortcut the brain takes is to avoid making decisions by either procrastination or maintaining a perceived status quo. Either way, the results are less than desirable and get worse as the day wears on the brain. The study further shows that blood glucose levels have an effect on decision making. So the lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. In other words, those decisions made after meals and snacks were much better reasoned.

So what does this have to do with going to court? Judges are ultimately decision makers called on to make tough decisions every day. In today's litigious society, the typical docket is packed with cases for the Court to hear on that given day. This is especially true in domestic relations calendars where it is common for there to be more cases scheduled than hours during the day. From the get go, the Judge is called on to make decision in a rapid fire setting. Normally the court will hear the short and more routine cases first and handle the longer more complex cases later in the day. That means by the time the Court gets to hear the complex divorce and custody case, the Judge has made many decisions. Once the hearing begins, the court will be called on to make decision about evidentiary and procedural rulings so that by the time the judge is actually deciding the ultimate issues in the case, the judge has been taxed to make hundreds of decisions during the day. Decision fatigue can set in.

But aren't judges educated professionals? How can they let this effect the outcome of a case? There is no escaping the fact that judges are human as well and are subject the same fatigue as everybody else. The study in this article comes as no surprise to judges. The Court routinely and repeatedly advises and encourages people to resolve their cases before the need of having a hearing. Parties need to understand the effects that wear and tear that court has on the judge hearing their case. The best way to deal with the possible effects of decision fatigue on judges is to resolve their case while they are still in control.

Alternative dispute resolution is one means to avoid the effects of decision fatigue. While mediation takes the wear and tear of decision making off the judge and places it on the parties, mediation is scheduled for a time when all involved can be well rested and ready to handle the multiple decisions needed to resolve their matters. Also, mediation usually takes place in a relaxed atmosphere that allows for snacks to replenish those crucial blood glucose levels. Arbitration is like having a judge that you can schedule at the convenience of the parties. This means the decision maker can go straight into hearing that complex case without deciding array of smaller cases first. Arbitration is also less formal that court, allowing for more frequent breaks and rests.

There are also a number of things that can help to reduce the strain brought on by decision fatigue. Parties and counsel can reduce the levels friction, thus reducing the number of times the judge has to rule on preliminary issues. The parties can also narrow the issues for hearings in order reduce the number of issues left for the judge to decide. Finally, the parties may wish to allow the court to take the ultimate issue under advisement, allowing the court to delay actually making the decision to a time when the judge is more refreshed and producing a better result. While decision fatigue is humanly impossible to eliminate, it is something that all concerned should take into consideration before stepping foot into a courtroom.

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