“ ‘A certain number of errors are inevitable,’ says George Mather, a psychologist at the University of Sussex, UK, who analysed wrong calls in professional tennis tournaments with a mathematical model of human perception. ‘Even the best line judges are always going to make a few errors,’ he says.”
Do judges make wrong decisions? Yes. That is what the Court of Appeal is there for, although the cost of pursuing appeals is so prohibitive that most decisions simply aren’t questioned. Also, when reviewing the case, the Court of Appeal can only review certain types of errors: a misunderstanding of the facts of the case or an error applying the law. Alleged errors in interpretation of the facts or a judge’s discretion are very difficult to overturn. Of the few that are appealed and heard by the Court of Appeal, only approximately 13% are successfully overturned.
Why do Judges Make Wrong Decisions?
A judge’s job is incredibly difficult. And they are only human. Their case-loads can be very demanding. The decision-making faculty is like a muscle, and even though judges have the best trained and exercised muscles, the court system is currently so busy that “muscle fatigue” is inevitable.
One recent study of Israeli judges demonstrated that judges’ decision-making is affected by actual physical fatigue factors. The study found that at the beginning of a session, after a lunch break or other break, the judges were 65% likely to grant parole. This dropped to almost 0% right before a break; that is, the judges began to default to denying parole (the parolee had the burden of proof, so the less difficult choice was to say the burden had not been discharged). Even after factors personal to the parolee were taken into account, the study authors found that the parolee’s chances were significantly better if they were in the first three cases called in a session than if they were in the last three. Judges get “hangry” too.
Judges have their proclivities. For example the judge hearing your family dispute may be deeply religious, or deeply atheist. Though that judge may, on the whole, be able to set aside his or her biases in this regard, he or she may default to a more subjective view when fatigued or overwhelmed or worn down by difficult parties or evidence. In such a circumstance, the judge may be less objective with respect to a party who is applying for an order that his children must attend a religious private school.
Judges are also, to varying degrees, vulnerable to the same cognitive biases we all have. The theory is that when making “judgment calls” our brains lean toward simplicity over complexity and we tend to believe a thing we have heard repeatedly just because it is familiar and what is familiar is easier to believe. Cognitive ease can make things appear true that aren’t. Veritasium video “The Illusion of Truth”
How can you Avoid Bad Calls?
We always encourage our clients to try to work out a solution OUT OF COURT, by way of negotiation or mediation. That is the only 100% sure way to avoid a bad call by a judge. By negotiating your own outcome, you get to decide which compromises are the “least worst” for you and your family, and you can steer clear of what is “completely wrong”. As one judge likes to put it when he is encouraging litigants to settle their issues outside of the court room: “I don’t love you. I don’t love your kids.”
In every circumstance, a court-adjudicated solution to your family’s problems should be the last resort.