Unchecked Biases in Family Law Are Pervasive and Harmful

Implicit and Explicit Biases

Biases are preferences and opinions, which are not the product of thorough research and thoughtful analysis. Objective statements of fact are not legitimately impacted by bias. The same is not true of subjective claims, and the more subjectivity involved, the greater the potential for bias to come into play because of reliance upon interpretation and human analysis. For instance, words mean different things to different people. One definition of bias is “an unfair personal opinion that influences your judgment.”

In the recently published book Noise: A Flaw in Human Judgment, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein explain that to appreciate, comprehend, and address “error in judgment,” an understanding of both bias and noise is essential. They also explain that unlike bias, noise is rarely discussed or even acknowledged, which is why this article includes many references to that book. The authors recommend distinguishing between biases and noise for a variety of reasons, including determining the proper interventions needed to reduce them. They differentiate between biases and noise as follows:

Psychological biases create statistical biases [measurements or judgments that mostly deviate from the truth in the same direction] when they are broadly shared. However, psychological biases create system noise [unwanted variability of judgments] when judges [decision-makers] are biased in different ways, or to a different extent. Whether they cause statistical bias or noise, of course, psychological biases always create error.

The definition of bias used herein includes noise.

Left unchecked, biases cause people to constrict and distort the information they receive and consider, which leads to impaired thinking. Unless someone’s intention or purpose involves that which is “not morally right, or not treating people in an equal way,” the definition of unfair, there are no beneficial biases. This is an extremely important point to grasp because many people believe otherwise and insist that it is impossible and too burdensome to even attempt to manage infinite numbers of biases and that it makes more sense to focus on just a few of the “more harmful” ones. When, if ever, is constricting and distorting the information heard, understood, and considered beneficial to one’s decision-making? Along those lines, in Noise, the authors state:

[T]he human mind is imperfect—it is both biased and noisy. . . . [B]ias and noise are independent and additive sources of error. . . . It is unfair for similarly situated people to be treated differently, and a system in which professional judgments are seen as inconsistent loses credibility. . . . To improve the quality of our judgments, we need to overcome noise as well as bias.

An “unfair personal opinion” can be in favor of or against someone or something. Negative and positive biases are opposite ends of the same rope in that those against someone or something will positively impact another person or thing, and vice versa.

People are aware of and consciously endorse their explicit biases. When they perceive them as valid, what is unfair will not register as such. Most biases are unconscious, though, and arise through learned associations. These are known as implicit biases and often cause people to act in ways that are inconsistent with their core values.

Developing an understanding of biases, their impact, and how to keep them in check is only important to the extent that integrity (the motivation to be fair) matters, which involves accuracy and consistency in decision-making. Consider how this relates to the following comment Lawrence Tribe of Harvard Law School made in a Q&A recently published in the Daily Journal, California’s largest legal newspaper:

I’m always conscious of the many preconceptions that anybody, judge or advocate or academic, necessarily brings to his or her writing or advocacy. It’s those who fool themselves into thinking that they’re totally “objective,” have no biases or interests inclining them to see things one way rather than another, who are least to be trusted.

It bears mentioning that our emotions impact our perception of fairness, among other things. Fear keeps us safe from perceived danger, disgust (the emotion associated with perceptions of immorality) protects us from our perceived threat of being poisoned physically and socially, anger is a response to a perceived injustice, and sadness is a reaction to a perceived loss. While these perceptions may be real, they might also be exaggerated or completely imagined. As such, emotional self-awareness and bias management efforts go hand-in-hand. However, although emotions impact people’s decision-making, lawyers are trained to engage in “dispassionate rationality” through emotional detachment, as if that were humanly possible. This helps to explain the pervasiveness of implicit bias in the legal field. These unchecked biases influence everything from our personal lives to our work in family law and its impact on the “welfare of the family and society.” A person’s position and sphere of influence determine the number of people affected.

Public Policy

Public policy is defined as “that which the law encourages for the promotion of the public good.” What is in the public good, is deemed promotion of it, and encourages such promotion is subjective and therefore shaped by bias.

Policymakers’ biases and those held by their influencers can motivate their policies, and policies can be used to ingrain and worsen existing societal biases or challenge them to effectuate cultural change.

Statutes

Lawmakers enact statutes based upon public policy considerations, which can be determined by biases. Those statutes vary greatly depending upon the jurisdiction and time frame involved, and changes in available information alone cannot explain away these differences.

Additionally, some statutes leave little to no room for interpretation, while others allow for varying degrees of discretion by including language that can mean different things to different people, as an example. The words, phrases, and overall composition of statutes impact the nature and extent of biases on the part of those enforcing and interpreting them. In Noise, the authors distinguish between rules and standards as follows:

Rules are meant to eliminate discretion by those who apply them; standards are meant to grant such discretion. Whenever rules are in place, noise ought to be severely reduced. . . . [However], whenever a public or private institution tries to control noise through firm rules, it must always be alert to the possibility that the rules will simply drive discretion underground.

In Noise, the authors discuss how prosecutors have been found not to charge those twice previously convicted of felonies with another felony if they believe the sentence under a three-strikes policy would be too harsh, as an example of such underground discretion.

In family law in California, one place discretion is taken underground involves the determination of spousal support at the time of divorce or thereafter. It is an open secret that lawyers, mediators, and the parties themselves tend to use a computer program to calculate such support, and widely suspected that judicial officers do the same. If they know better, they deviate slightly from the “guideline” support amount to cover their tracks because the California Judges Benchguide provides as follows:

Do not use the amount of temporary support or a computer calculation in determining the amount of permanent support because the considerations in awarding the two types of support are different.

Clearly, discretion is not only driven underground when rules are deemed too unyielding or unfair; it can also be driven underground when standards are viewed as unduly burdensome and there is a perception of unfairness stemming from the nature and extent of variability in judgments.

Unchecked biases on the part of those enforcing and interpreting statutes can impact whether, when, and how statutes are applied and whether they are employed in an impartial manner.

Case Law

The issues of unchecked biases with case law are much the same as those involved with statutes, except that case law involves “factual” findings by trial courts and judicial interpretation of constitutional provisions, statutes, regulations, and court precedent.

In a 1991 study, Paul Ekman and Maureen O’Sullivan proved that California judges fared no better than random chance in making factual findings based upon demeanor evidence. They also found that the length of time a judge has been on the bench does not improve their ability to decipher truth from fiction, although it likely causes them to be overconfident and overestimate their abilities in that regard.

Understand the implications of this reality. If one, two, or three facts in any given case are in dispute and the trial judge or jury makes factual findings based, in part, on their interpretation of demeanor evidence, there is a 50 percent, 25 percent, and 12 ½ percent chance, respectively, that their assessment of all those facts will be correct.

Research shows that appellate judges have less opportunity for bias to influence their decisions than do trial judges because they are not led away from the truth due to the ways their biases impact their credibility assessments of the parties’ and witnesses’ appearance and demeanor.

However, our legal system continues operating on the false belief that trial courts can make such determinations more accurately because they have access to demeanor evidence. Because this deviation from the truth is in the same direction, broadly shared, and systemic, it is very much the result of unchecked bias by members of the legal profession. The proper application of the law to inaccurate factual findings leads to legal injustice, something that research has confirmed occurs far more frequently than people realize. If the fact that those responsible for dispensing justice continue operating under a belief that was proven false more than thirty years ago is not “an unfair personal opinion that influences [their] judgment,” what is it?

Consider the following finding in a recent parenting decision by the Kansas Supreme Court in In the Interest of F.C., a Minor Child, 482 P.3d 1137, 1144 (Kan. 2021):

[W]e find the Court of Appeals has given too little deference to the trial court’s findings of fact. This deference extends not only to just what the witnesses said, but also goes to the trial court’s findings concerning credibility and demeanor of those witnesses.

Research has also shown the difficulty judges have separating their policy preferences from their judgments pertaining to the meaning of statutes. In fact, in his recent Q&A published in the Daily Journal, Lawrence Tribe said the following:

Nearly everyone who studies law and understands its methods comes to realize that the legal and the political aren’t neatly separable. . . . Whenever [there is honest disagreement about textual interpretation] and how legal questions are best answered, . . . it’s possible and perhaps necessary to describe the disagreement as grounded in different views of the world, views that are in a sense invariably social, cultural, and political.

Courts also overturn their own precedents and those created by lower courts and determine whether a decision is published or de-published.

Presumptions

As stated in Noise, “Many rules amount to irrebuttable presumptions. . . . Their purpose and effect are to reduce noise.” The same is true of rebuttable presumptions, but to a lesser degree. Another word for a rebuttable presumption is a default, which is defined as “the thing that exists or happens if you do not change it intentionally by performing an action.”

In the field of family law, unfairness resulting from judicial discretion is very real. Consider the following excerpt from the dissenting opinion in In the Interest of F.C., a Minor Child, 482 P.3d at 1148–49 (Stegall, J., dissenting):

The reality of subjective judicial decisions driven by the biases of judges is a perennial problem in this area of the law. . . . The literature discussing this problem is robust.

Judge Stegall, the justice who authored that opinion, then opines that this results from “a lack of clearly defined, objective legal standards.”

Presumptions create and perpetuate biases because people develop them in favor of the default option. Furthermore, biases come into play regarding what is and is not sufficient to rebut presumptions. The irony is that presumptions are established to reduce bias, and they create other biases.

Family law court is a court of equity. In courts of equity, judges purportedly base decisions on general principles of fairness in situations where rigid application of the law would bring about injustice. This provides judges with greater flexibility through judicial discretion to hear and resolve disputes. However, what is fair, and to whom? The research shows that people, including judges, tend to find ways to achieve their desired result, a result that tends to align with their own sense of fairness, which is subjective.

Absent unusual circumstances, a couple’s date of marriage is an objective fact. The same is not true for their date of separation, although laws can provide for varying degrees of discretion. These dates tend to impact the outcomes of cases, which involve issues of fairness.

When it comes to parenting plans and timeshare schedules, biases come into play regarding what is in the best interest of the child(ren). There is also a lack of information regarding the reliability and validity of custody evaluations and the various interventions recommended by evaluators. Yet, research shows that judges follow such recommendations approximately 85 percent of the time, which reflects unchecked bias. The following is an excerpt from Justice Stegall’s dissenting opinion in In the Interest of F.C., a Minor Child, 482 P.3d at 1149:

Judicial bias exists on behalf of—and against—all manner of parent demographics and parenting choices. See, e.g., Baer, The Amplification of Bias in Family Law and Its Impact, 32 J. Am. Acad. Matrim. Law. 305, 335 (2020). . . .

Regarding spousal support, it has been found that gender impacts the application of statutes that are gender neutral. For example, consider the following information conveyed on September 24, 2014, at the Pasadena Bar Association Family Law Section meeting by Gretchen W. Taylor, Commissioner of the Superior Court (Ret.), who used to teach for the judges’ school that all new California judges are required to attend: Taylor described how they distribute a hypothetical question to the students, without advising them that the genders are reversed for half of the students. She informed us that the bell curve produced from the results reflected a clear bias in favor of females.

This relates to a concept known as “garbage in, garbage out” and how that can be used to accomplish desired results, to the extent possible. The “guideline” figure for interim support varies depending upon the data used, the fields into which the data are inserted, the settings applied, and the program and version used.

The same issues are involved with child support determinations. Biases can result in intentional and unintentional variations. In addition, the use of the guideline is often a rebuttable presumption, and therefore subject to bias. For example, in California, courts may depart from the guideline support when “the parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.”

Division of marital property involves subjectivity in determining the valuation, characterization, and actual division. Unless each judge in any given state would make the identical determinations, bias plays a part. The same is true when it comes to the allocation of attorney fees and costs between the parties.

In Noise, the authors “use the word lottery to emphasize the role of chance in the selection” of a particular judge to a case. They also state as follows:

[J]udgment is difficult because the world is a complicated, uncertain place. The complexity is obvious in the judiciary and holds in most other situations requiring professional judgment. . . . Disagreement is unavoidable whenever judgment is involved.

Debiasing

In 1994, Timothy D. Wilson and Nancy Brekke provided scientific proof that bias could be avoided or eliminated as follows:

• Become aware of the bias and why it exists;
• Have the motivation to overcome it;
• Be aware of the direction and magnitude of the bias; and
• Have the ability to apply an appropriate strategy to help reduce or otherwise manage the bias.

The reason this article focuses primarily on the first three points is that bias-reducing strategies are worthless without the existence of those points and “implicit bias is particularly prevalent in the legal field.”

Strategies for Keeping Biases in Check

For Oneself

Consistently work to increase your emotional self-awareness because it is impossible to reduce or otherwise manage that of which you are unaware. Emotional self-awareness is the foundation of emotional intelligence and the means through which humans calibrate their ethical and moral compasses. The opposite of emotional self-awareness is self-righteousness. As Sukhsimranjit Singh, managing director of Straus Institute for Dispute Resolution, said in 2018 during a program titled Restoring Civility in an Overheated Society, “To be aware of your culture, you have to get out of it.”

Emotional self-awareness is defined as “reading one’s own emotions and recognizing their impact.” For example, if you find yourself experiencing the emotion of disgust to a person or segment of the population, self-righteousness may be rearing its ugly head. During that same program, international mediators Tracy Allen and Eric Galton, known for their work on Restoring Civil Discourse, stated, “The way we change our minds on moral issues is by interacting with others, especially because we are not good at seeking evidence that contradicts our beliefs.”

As uncomfortable as it may be and in accordance with the information set forth above, a blog published by the American Bar Association in 2017 titled How Emotional Intelligence Makes You a Better Lawyer states as follows:

Studies show that lawyers score high in intelligence but below average in emotional intelligence. . . . And emotional awareness [of emotions in themselves and others] is the EI skill that lawyers usually score lowest in. . . . Law schools have been unwitting collaborators in emotionally dumbing down lawyers for generations. . . . To start, we have evidence that the LSAT tends to prefer applicants . . . [with] an emotional management deficit. Further, there is research showing that these low EI tendencies accelerate during law school.

For Your Own Case

List counterarguments and alternative potential outcomes, the probable likelihood of each, and how much you would hypothetically bet on any given outcome before forming your opinion. This technique is designed to reduce the overconfidence bias, which has been found to be a hard-to-correct bias. Listing or being forced to consider counterarguments and alternative or potential outcomes prior to estimating their probabilities and reporting confidence in the accuracy of choices is effective in reducing the overconfidence bias. Hypothetical betting on those probabilities has been found to further reduce the bias.

For Parties

Understand the difference between “why questions” and “what questions” and use them appropriately. “Why questions” help to assess the cause(s) of problems; however, they stir up negative emotions, keep people stuck in the past, draw on limitations, and create a sense of victimhood. Negative emotions such as disgust, sadness, anger, and fear have been found to significantly increase settlement rejection rates. “What questions” assist people in making smarter decisions by helping them gain useful insight to their problems, seeing potential, problem-solving for a better future, and managing their emotions.

For Other Lawyers Involved

Use mediators more judiciously throughout representation to debias yourself and the other lawyers involved in a case. A vast body of research exposes that partisanship distorts objectivity. It has been found that by virtue of the very role lawyers play as their clients’ advocates, lawyers are susceptible to pervasive biases, which promote “we-they” thinking and can intensify and perpetuate conflicts.

For Witnesses

Ask witnesses to clearly verbalize the theories, assumptions, expectations, and beliefs underlying their opinions. Such things can greatly impact people’s opinions, which makes awareness and understanding of them and their influence important.

For Judges

Request judges to articulate the reasoning underlying the factual and legal basis for their decision as to each of the principal issues and make that request before issuance of the decision, to the extent legally permissible. In addition to preserving the record for appeal, this forces judges to actively engage in more thoughtful and deliberate information processing.

Conclusion

In 2000, the American Academy of Matrimonial Lawyers issued its Bounds of Advocacy, which stated in part as follows:

Family law is not a matter of winning or losing. At its best, family law should result in disputes being resolved fairly for all parties, including children.

For the reasons stated herein, that is impossible unless all those involved in family law do everything possible to keep their own and each other’s biases in check, which requires integrity