August 25, 2011 § 1 Comment

It’s the end of a grueling three-day custody trial. The judge has recessed and will render a bench opinion at the end of the recess. You and opposing counsel are tired of the case, of fussing with each other, of the judge, of being out of the office, and of dealing with the clients. The judge gave the attorneys the option of a bench opinion or a written opinion later, and you and counsel opposite elected to end it right then and there.

Did you make the right choice? Maybe not.

The New York Times published a fascinating article on August 17, with the title, “Do You Suffer from Decision Fatigue?

I encourage you to follow the link and print a copy. It is worth a read for every lawyer and judge to help understand how decison-making ability degrades with accumulation of decision-making, and how scheduling and trying matters may affect their outcome.

The study shows how the act of making decisions actually drains the brain of energy through the course of a day. Initially, the brain, full of energy and fresh, tackles decision-making with ease. The more decisions the brain is called on to make, however, the less energy it has available to devote to the task, and performance degrades. It’s like starting off on that jog through the park full of vigor and energy, and winding up panting and walking on jellyish legs to your car three miles later.

The study also says that blood glucose levels have an effect on decision making. The lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. Decisions made after meals and snacks are, as a result, better reasoned and more true to the facts and law.

So what are the implications as you plod your way to the end of that stressful trial? Consider:

  • It’s the judge’s job to make tough decisions every day, and quite often many times through the course of a day. Decison-making is not confined to the final outcome of the case. Decisions must be made objection-by-objection, and often in rapid-fire fashion. To top it off, good lawyers making strong legal arguments intensify the process.
  • It’s true that judges are professionals, and that decision-making is part of the job, but judges are human, and are subject the to same fatigue factors as others.
  • Keep in mind that the judge is not only depleting energy with decision-making while on the bench. The judge is paying attention, evaluating evidence and testimony and making notes, all of which in combination takes its own, separate toll. 
  • As an attorney, you can reduce wear and tear on your judge’s psyche by reducing the number of objections and preliminary matters you call on the judge to decide. 
  • If you anticipate that a witness will generate contentious argument and require rulings on admissibility, it’s probably best to tackle those early in the day before the judge has begun to wear down.
  • You might want the judge to take the final decision under advisement, which allows the court to delay the decision to a time when the judge is more refreshed and capable of producing a better result.

I can tell you from experience that patience and insight both wane over the course of a taxing trial. I’ve remarked more than a few times to my wife after a trial that I was as worn out as if I had been one of the trial lawyers. You need to take that into consideration when you plan out your day in court.

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