Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and discussions with many litigators over the past thirty years, I have little doubt that Guthrie is right. Nonetheless, it also is very likely that many judges would disagree with Guthrie's conclusion. As Guthrie and his colleagues noted in an earlier article, “egocentric biases may make it hard for judges to recognize that they can and do make mistakes.” This egocentric or self-serving bias is just one of three cognitive blinders that Guthrie argues influences judges and causes them to misjudge cases. In Misjudging, Guthrie presents empirical evidence supporting his claim that these cognitive blinders, along with attitudinal and informational blinders, increase the likelihood that judges will reach incorrect results. Guthrie concludes, therefore, that litigants and their lawyers should take the reality of misjudging into account when deciding which dispute resolution forum to use.
Rodney J. Uphoff, On Misjudging and Its Implications for Criminal Defendants, Their Lawyers and the Criminal Justice System, 7 Nev. L.J. 521 (2007)