Humean Lawyering for Humans

Even though Judge Sonia Sotomayor has already been confirmed to the United States Supreme Court, and the furor over her “wise Latina” comment, and over the President’s “empathy” comment, appears to have died down, I am still bothered by the popularity of the idea that judges are just supposed to be unfeeling logic machines, applying the law without reference to their personal history and the understanding of human nature that they have developed through their own experience. While reading David Hume’s An Enquiry Concerning Human Understanding this weekend, it occurred to me that the empiricist underpinnings of our evidential rules provide further support for the idea that neither Judge Sotomayor nor President Obama were out of line for saying what they did.

David Hume suggested that “[a]ll the objects of human reason or enquiry may naturally be divided into two kinds, to wit, Relations of Ideas and Matters of Fact.” (An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 1.) The difference between the two is that ideas can be negated while facts cannot be. For example, if I say that a triangle has three sides, you cannot negate that statement by saying that a triangle has some other number of sides. A triangle is defined by the number of sides it has, so it defies logic to say that a triangle has four sides; then you are talking about a quadrilateral. On the other hand, said Hume, if I say, “The sun will rise tomorrow,” then you can say the opposite, without doing violence to logic, that “The sun will not rise tomorrow.” There you are not dealing with logical propositions, but facts—and, try as you might, you will never be able to prove that the sun will rise tomorrow with the same level of certainty with which you can assert that a triangle has three sides; you can only show the extremely high probability that the sun will rise tomorrow.

Except for lawyers, most people probably couldn’t care less about the distinction between “ideas” and “facts.” And lawyers care because they have to worry about evidence. We have to present evidence to people—judges or juries, conveniently lumped together by the term “triers of fact”—who did not experience what the evidence is intended to prove, and we have to convince those triers of fact that something happened. We have to develop in them an individual sense of assurance that the events we claim to have occurred really did occur. The sense of assurance must be strong enough that those triers of fact will make an important decision about the consequences of those events: someone will pay a substantial sum of money to someone else, someone will be compelled to commit certain acts, someone will be imprisoned, and so on.

So, as Hume put it, “It may, therefore, be a subject worthy of curiosity, to enquire what is the nature of that evidence, which assures us of any real existence and matter of fact, beyond the present testimony of our senses, or the records of our memory.” (An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 3.) Here is how he starts that enquiry:

All reasonings concerning matter of fact seem to be founded on the relation of Cause and Effect. By means of that relation alone we can go beyond the evidence of our memory and senses. If you were to ask a man, why he believes any matter of fact, which is absent; for instance, that his friend is in the country, or in France; he would give you a reason and this reason would be some other fact; as a letter received from him, or the knowledge of his former resolutions and promises. A man, finding a watch or any other machine in a desert island, would conclude, that there had once been men in that island. All our reasonings concerning fact are of the same nature. And here it is constantly supposed, that there is a connexion between the present fact and that which is inferred from it. Were there nothing to bind them together, the inference would be entirely precarious. The hearing of an articulate voice and rational discourse in the dark assures us of the presence of some person: Why? Because these are the effects of the human make and fabric, and closely connected with it. If we anatomize all the other reasonings of this nature, we shall find, that they are founded on the relation of cause and effect, and that this relation is either near or remote, direct or collateral. Heat and light are collateral effects of fire, and the one effect may justly be inferred from the other.

If we would satisfy ourselves, therefore, concerning the nature of that evidence, which assures us of matters of fact, we must enquire how we arrive at the knowledge of cause and effect.

(An Enquiry Concerning Human Understanding, § 4, Part 1, ¶¶ 4-5.)

If Hume’s example of evidence that a “friend is in the country, or in France”—such as a letter “or the knowledge of his former resolutions and promises”—sounds familiar, then you are probably a lawyer or a law student who has read the case of Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892). That’s the case where Mrs. Hillmon sought payment on Mr. Hillmon’s life insurance policies and the pivotal issue was whether a body found at a place called Crooked Creek in Colorado was actually that of Mr. Hillmon. The two insurance companies who had issued the policies did not want to pay out—because their business model is to take in as many premiums as possible and pay for the fewest possible number of claims—so they argued that the body actually belonged to someone named Walters. In support of that defense, they tried to introduce into evidence some letters that Walters had written to his sister and his fiancée stating his intention to leave Wichita and go to Colorado with Mr. Hillmon during the period when the body was found. But the trial court did not allow them to enter those letters into evidence: they were hearsay, and therefore not sufficiently reliable.

The insurance companies tried to argue that the letters should come into evidence under an exception to the hearsay rule, as records made in the ordinary course of business. But, as the Supreme Court pointed out, “they were clearly not such.” (Hillmon, 145 U.S. at 295.) Even so, the Court found a way to let the letters in:

A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.

The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be. . . .

The letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention.

(Hillmon, 145 U.S. at 295.) In other words, Walters’ expression of intention as manifested in the letters, while still hearsay—that is, a statement made out of court, offered in court to prove the content of the statement—should be admitted as an exception because they are reliable evidence not that Walters actually went to Colorado with Mr. Hillmon, but that he intended to go there. There is no reason of logic why a letter to a loved one stating an intention to do something should be reliable evidence of what the writer intended to do. One might suppose, as the Court did, that “while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and is less trustworthy than letters written by hime at the very time and under circumstances precluding a suspicion of misrepresentation.”

That is, the insurance companies were doing exactly what Hume suggested: trying to explain a fact by cause and effect. The letters were offered as evidence as an effect of a cause: Walters’ intention to go to Colorado with Mr. Hillmon; he wrote the letters because he intended to go to Colorado. And they were trying to prove the intention as a cause of another effect: Walters’ presence in Colorado when the body was found. From this, along with other evidence, the trier of fact was supposed to draw the inference that the body could have belonged to Walters, meaning that Mr. Hillmon was still alive and the claim on his life insurance should not be paid out.

But how is a person supposed to make sense of those “causes” and “effects”? The Court also quoted from a New Jersey case, in which, the day before he was murdered, a man wrote a letter to his wife stating that he would be traveling with the murderer to the place where the murder occurred. The court admitted the letter into evidence:

In the ordinary course of things, it was the usual information that a man about leaving home would communicate, for the convenience of his family, the information of his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously designed.

(Hillmon, 145 U.S. at 299, quoting Hunter v. State, 40 N.J.Law 495.)

The judges in Hillmon and Hunter were not making logical syllogisms to support their holdings. The rationales in their opinions are not like geometric proofs, but rooted in their experience. “Of course these letters are reliable evidence of their writers’ intentions,” the judges are saying. “Why would somebody who later turns up dead in a place that’s far from home have written a letter to lie about his intention to travel there?” But, just as Hume suggested that there is nothing illogical in asserting that the sun will not rise tomorrow, there is nothing illogical in asserting that such letters should not be considered reliable evidence of anything. Could you make a rationally appealing argument that what has come to be called “the Hillmon doctrine” is misguided? Sure. You could even make your argument by relying on your experience with people, many of whom frequently make statements of intention that they fail follow through to action.

To explain our use of cause and effect, Hume proposed that we can only discern a relation between cause and effect because we repeatedly observe certain things occurring together:

I shall venture to affirm, as a general proposition, which admits of no exception, that the knowledge of this relation is not, in any instance, attained by reasonings a priori; but arises entirely from experience, when we find, that any particular objects are constantly conjoined with each other. Let an object be presented to a man of ever so strong natural reason and abilities; if that object be entirely new to him, he will not be able, by the most accurate examination of its sensible qualities, to discover any of its causes or effects. Adam, though his rational faculties be supposed, at the very first, entirely perfect, could not have inferred from the fluidity and transparency of water, that it would suffocate him, or from the light and warmth of fire, that it would consume him. No object ever discovers, by the qualities which appear to the senses, either the causes, which produced it, or the effects, which will arise from it; nor can our reason, unassisted by experience, ever draw any inference concerning real existence and matter of fact.

(An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 6.) Hume’s “Adam” argument is just the 17th century version of the “alien observer” argument: If aliens came to earth with no knowledge or experience of anything on our planet, would they conclude, for example, that Walters’ letters were reliable evidence of his intention to travel to Colorado with Mr. Hillmon? How would they have any means to make a decision either way? What do they know about human culture, or how people communicate with their loved ones before traveling? If the human judges who decided the Hillmon case had tried to put aside their humanity, their experience, even their empathy—not just for the parties, but for Walters, too—how would they have come to a decision? Left with only logic and rules previously stated in the English language—undoubtedly a human language, which makes it notoriously imprecise—how would they have done anything but slip into decisional paralysis?

Judges need their human experience to make decisions. Any lawyer who has appeared before more than one judge knows that the human experience of those judges injects a small amount of disorder and unpredictability into the law, as manifested in their decisions. But that human experience also prevents those judges from failing to make decisions for inability to get a handle on the questions before them.

So what did Judge Sotomayor mean by her infamous “wise Latina” comment? Putting aside the fact that conservative Justice Clarence Thomas made a similar statement without triggering outrage, and the fact that Sotomayor was probably just trying to encourage the other members of her demographic, who are severely underrepresented on the bench, it seems clear that, while she may have chosen her exact words poorly, she expressed a difficult truth about the law. Knowing, as we do, that judges’ humanity is necessary, unavoidable, and a force for disorder and unpredictability, and knowing that we live in a society with many people of extraordinarily diverse experiences, all of whom turn to the courts to resolve their disputes, why wouldn’t we try to temper the bench by populating it with judges whose human experiences are just as diverse as the litigants who come before them?

Judges are forced to make important decisions every day. Even when it seems like they can make those decisions by the application of settled law, they have to rely on their human experience. I recently appeared before a judge who made a decision in my favor by pulling out her code book, reading from a statute that appeared to compel a certain outcome, and telling the other attorney that she had no discretion to do otherwise. To the untrained eye, this judge was acting as a decision-machine, applying the law without recourse to experience or empathy. Experts might see if differently. Since that decision, the other attorney has twice observed that the judge was wrong about the law, and he is probably right. But we had a unique situation, where the opposite decision was probably going to be a greater hassle and expense for everyone involved. How could the judge have known that, except for her experience of humanity and her empathy with the people involved—which clearly encompassed both parties and their attorneys? You might say her decision was wrong on the law, but right on the facts—and just about every time a judge faces a potential split like that, she is probably going to choose the outcome that is right on the facts. In previous essays, I have called that justice.

Am I perceiving that particular decision by that particular judge on that particular day in a favorable light because it benefitted my client and me? Maybe. But I agree with the other attorney that the judge was probably wrong on the law. Still, there are no objectively correct decisions in court. One side has a belief about what is correct, the other side often has a contrary belief, and we mediate between those beliefs by arguing them to a judge. The judge is human and thus not capable of objectivity, but her position as a third party, not involved in the dispute, creates what might be called relative objectivity. Neither party to a legal dispute has a fully objective perspective, but the judge, by seeing both sides without having the obligation to align her interests with one or the other—as the lawyers representing the parties do—has more objectivity than the parties or their attorneys. The fact that most judges are physically elevated above the parties and their attorneys in the courtroom illustrates that principle: the judge may have the benefit of a bird’s-eye-view, but she is not omniscient.

Aside from all of this about humanity and objectivity, there are good, practical reasons for lawyers to read things like the philosophy of David Hume. It helps us think about and understand the anatomy of persuasion by evidence. But even though most people are not remotely interested in the difference between “Relations of Ideas” and “Matters of Fact,” the politics of judging reveals that they should be. If we are going to be a society ruled by law, and if we are going to invest judges with the authority to make binding decisions and to keep the law on course, then we ought to be thinking about how the system works.