Apologies in Bankruptcy Court: Part 2

by Johnny Tisdale on March 8, 2013

This is Part 2 of a two-part article on Bankrupt Apologies, a recent study which shows that bankruptcy judges are influenced by apologies. For Part 1, click here.


Robert Lawless, an author of the study, is also a co-director of the Illinois Program on Law, Behavior, and Social Science, which “seeks to broaden and deepen knowledge at the intersection of law and various fields of social science,” including psychology. The other author, Jennifer Robbennolt, is both a law professor and a psychology professor. The study of apologies in legal situations belongs to the interdisciplinary domain of legal psychology. It would be insufficient, then, to analyze the present study solely from a legal perspective. It must be considered in the broader context of law’s intersection with psychology.

From an exclusively legal perspective, the legal system is the sea in which we swim. Those who are first and foremost lawyers have little motivation to question its established assumptions. Success in the legal profession depends largely on one’s familiarity with the system as it is. Adopting a legal-psychological perspective, however, means that we can take a step back from the legal system. It becomes our object of study rather than the field in which we study.

What’s particularly interesting about Bankrupt Apologies is the finding that “judges’ decisions can be complex and multidimensional. Law matters, but so do other things.” The idea that one should feel remorseful about not being able to repay one’s debts belongs not to the letter of the law, but to the personal morals of certain judges. Yet, Lawless and Robbennolt have shown that these morals can and do play a role in the judicial decision-making process. This is at odds with our society’s mainstream belief that justice is – or should be – blind. We like to believe that the people we elect to the bench are impartial observers who make their decisions solely on the basis of legal technicalities. The problem with this rosy assumption is that it reflects far too much confidence in the ability of human beings to be purely objective.

Even scientists, who are arguably more concerned than anyone about objectivity, are not purely objective. In fact, because they are so concerned about objectivity, they take their own subjectivity into account when designing experiments. Otherwise, “experimenter’s bias” – in which the researcher’s expectations subtly influence the results – could compromise the entire study. In the social and medical sciences, researchers often use a “double-blind” experimental design to minimize the effects of experimenter’s bias. A double-blind study is one in which neither the researchers nor the participants know which participants are assigned to the control group and which participants are assigned to the experimental group.

For example, had the present study been double-blind, then Lawless and Robbennolt wouldn’t have known which bankruptcy judges received the fictional story that included an apology. That way, they would have been less likely to unwittingly offer any subtle clues about their expectations when instructing the judges. The keyword here is “unwittingly.” It doesn’t matter if you intend to be as objective as possible. It doesn’t matter if you consciously allow no selfish concerns to enter into your calculations. Perception is not a passive process in which we see things exactly as they are. If it was, our senses would be overwhelmed by what psychologist-philosopher William James called “one great blooming, buzzing confusion.” Our psyches take sensory input and then organize it to… well, “make sense” out of it, to give it some kind of meaning.

Judges aren’t the only people whose subjectivity results in miscarriages of justice. No aspect of the legal system has been studied by psychologists more than eyewitness testimony, which, as it turns out, is nowhere near as reliable as jurors tend to believe. Eyewitness testimony is affected by a number of factors, perhaps most notably the fallibility of human memory. Our memories are not like files stored on a hard drive. Rather, they are “individual recollections which have been shaped & constructed according to our stereotypes, beliefs, expectations, etc.” Even if an eyewitness recounts an event exactly as remembered, his or her memories are not verbatim recreations. Yet, eyewitness testimony remains heavily relied upon in our legal system.

Jurors are also prone to cognitive biases. Many legal psychologists work as trial consultants, using their knowledge of psychological research to help lawyers pick jurors who are most likely to deliver the desired verdict. If jurors were purely objective beings, then it wouldn’t matter who was chosen. We’d just pick 12 registered voters at random. Demographics wouldn’t matter. There wouldn’t be “plaintiff friendly” jurisdictions – just justice friendly jurisdictions. According to one study, however, experts believe that 85% of all litigated cases are won or lost during the jury selection phase!

Judges, eyewitnesses, and jurors, like all humans, are subjective beings. What does this mean? It means that the structure of our established legal system places too much confidence in the idea that humans are capable of pure objectivity. It means that we need to implement reforms to compensate for the cognitive biases to which all human beings are subject. Scientists have ways of compensating for their subjectivity, such as the double-blind experimental design. There is no reason why such safeguards cannot be built into the legal system as well. Although reforms have been proposed, there is little agreement among psychologists as to what those reforms should be. And even if a consensus among psychologists is one day reached, legal professionals still have to take the research seriously enough to realize the need for reform. The divide between the law and science must be bridged. A conversation has already been started, but more professionals on both sides of the divide must become involved.

Philosophers also have a role to play in the improvement of our legal system. When someone testifies before a court, they must first swear to tell “the truth, the whole truth, and nothing but the truth.” In light of research on cognitive biases, can anyone in good conscience swear to tell the whole truth? How do we define truth in the first place? The study of truth belongs to epistemology, the branch of philosophy concerning the nature of knowledge. Yet, a “philosophical analysis of ‘knowledge’ would get you laughed out of court in most cases where it mattered.” Why is this the case? Why are legal professionals so confident that everyone knows what knowledge is, when there is disagreement among those whose job it is to decide such things?

An unintended consequence of specialization is that professionals in one field tend to insulate themselves from valuable research in other fields. That’s why interdisciplinary ventures such as the Illinois Program on Law, Behavior, and Social Science are so vital. There must be more and more dialogue between legal professionals and professionals from fields like psychology and philosophy. Scientific discoveries should be used to improve human society – especially institutions of society as important as our legal system.

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Johnny Tisdale

Paralegal at Dowe Law Firm
Johnny Tisdale is a paralegal, web designer, and writer at the Dowe Law Firm. He earned his BS in psychology and ABA-approved paralegal certificate from Auburn University Montgomery in 2011.

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