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The Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them<\/h4>\nThe Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them<\/h4>\nBy <\/em>Donald R. Philbin, Jr.<\/p>\n ESPN recently dubbed baseball umpire Tim McClelland\u2019s missed calls in Game 4 of the American League playoffs as \u201cthe worst umpiring performance at an Angels games since Leslie Nielsen in \u2018The Naked Gun.\u2019<\/a>\u201d1<\/span><\/sup> While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.<\/p>\n Those of us who have spent time with disputants were not surprised.\u00a0\u00a0As New York Yankee Derek Jeter put it: \u201cUmpires are human.\u00a0\u00a0They make mistakes sometimes.\u201d2<\/span><\/sup> We routinely anticipate errors and design systemic checks to identify and address them.\u00a0\u00a0Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.<\/p>\n In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.\u00a0 Chief Justice John G. Roberts of the United States Supreme Court said, \u201cJudges are like umpires . . . Umpires don\u2019t make the rules; they apply them.\u201d3<\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n In a takeoff from Malcolm Gladwell\u2019s best-selling book\u00a0Blink<\/em>, Professor Chris Guthrie drilled into judicial error rates in\u00a0Blinking on the Bench: How Judges Decide Cases<\/em>, 93\u00a0Cornell L. Rev.\u00a01 (2007).\u00a0\u00a0There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a \u201cblink\u201d) and another analytical answer that might be the result of a reasoned opinion.\u00a0Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:<\/p>\n 1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?\u00a0\u00a05 (not 10) cents<\/p>\n 2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?\u00a0\u00a05 (not 100) minutes<\/p>\n 3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days<\/p>\n The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.<\/p>\n Another major study concluded that even parties advised by experienced litigators are not above error.4\u00a0Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% \u2013 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent\u2019s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.<\/p>\n Psychologists have long taught us that people with exactly the same information reach different conclusions.\u00a0\u00a0Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.\u00a0 It\u2019s largely a matter of assigned position. But the magnitude of the decisional error is telling.\u00a0\u00a0Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup \u2013 2.5 times less.4<\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n These studies confirm and quantify what we know intuitively:\u00a0\u00a0people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can\u2019t see the same solution; it may be that they cannot see the same problem.<\/p>\n Mediation is a commonly used to debias positional assumptions that lead to impasse.\u00a0\u00a0The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us \u2013 \u201cthat can\u2019t be good for us, or\u00a0they<\/em> would not have offered it.\u201d\u00a0\u00a0In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.\u00a0\u00a0Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.\u00a0\u00a0The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.5<\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n <\/sup><\/p>\n So the surprise is not that an umpire missed a call, it\u2019s how to deal with it systemically.\u00a0\u00a0Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.<\/p>\n \n \n Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see <\/em>http:\/\/www.adrtoolbox.com\/<\/span><\/em><\/a>.<\/em><\/p>\n 1 Caple, Jim, Umpire errors a real embarrassment<\/em>, ESPN.com, Oct. 20, 2009, available at <\/em>http:\/\/sports.espn.go.com\/mlb\/playoffs\/2009\/columns\/story?columnist=caple_jim&id=4581598<\/a><\/p>\n<\/div>\n 2\u00a0Id.<\/em><\/p>\n<\/div>\n 3 Bruce Weber,\u00a0The Deciders: Umpires v. Judges<\/em>, N.Y. Times, July 11, 2009, at\u00a0WK1,\u00a0available at <\/em>http:\/\/www.nytimes.com\/2009\/07\/12\/weekinreview\/12weber.html?_r=1<\/a>.<\/p>\n<\/div>\n 4 Randall L. Kiser, et. al,\u00a0Let\u2019s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations<\/em>, 5\u00a0J. Empirical Legal Studies\u00a0551-91 (Sept. 2008), available at <\/em>http:\/\/www3.interscience.wiley.com\/cgi-bin\/fulltext\/121400491\/HTMLSTART<\/a>.<\/p>\n<\/div>\n![\"dptree\"](\"https:\/\/journals.law.harvard.edu\/hnlr\/wp-content\/uploads\/sites\/91\/2009\/11\/dptree.jpg\" "\\"dptree\\"")
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