Monday, May 3, 2010

Court affidavits and behavioral economics

The wave of public opinion in favor of transparency in administration, exemplified by the landmark Right to Information (RTI) Act, may be an opportune moment to both demystify and illuminate with sunshine one of the most important wings of the government - judiciary.

It cannot be deined that more than any other arm of the government, the formalities and conventions, procedures and rules, jargon and documentation, of the judicial system has always exerted an intimidating and forbidding effect on those seeking to access it. This is all the more surprising since this arm of governance was to be the "helper of last resort" for those who have failed to get justice elsewhere.

It is therefore important that this arm be readily accessible to all those approaching it for redressing their grievances. By accessible, I mean not only the ability to merely visit a court and file a complaint, but also the ease of comprehending the processes within the judicial system so as enable them to present their case in the most effective manner.

Among the most important reforms that can help achieve this objective is the simplification of the documentation processes in our judicial system. At a time when checklists and bullet-points are among the most preferred means to communicate even the most complex things, the bulky affidavits filed by parties involved in court litigation looks positively antiquated.

These affidavits, with their legalesse, running sentences, and often meandering logic, are difficult to comprehend for even the well-educated and those with legal training, leave alone the illiterate poor and under-privileged. In fact, these affidavits are a formidable entry barrier to easily accessing our judicial system.

In this context, recent research in behavioral economics have pointed to the importance of framing (of the context) in the decision making process. For example, at least in the lower courts, it is commonplace to find affidavits filed by an advocate (on say land disputes) which harps on say, nine irrelavant issues (irrelevant to the issue under litigation) which are unambiguously in favor of his client, but be vague with the tenth issue (which is often hidden among the list of ten issues being presented), which is incidentally the point critical to the case under litigation. These affidavits are clearly examples of deliberate framing.

The judge who listens to the arguements or reads the affidavit and is primed into observing a series of issues (however irrelevant to the case) in favor of the petitioner is likely to succumb to his cognitive biases and overlook the weakness of the same petitioner's case on the critical point. Behavioral economists describe this as an availability bias - the evidences in favor of the petitioner is more "available" as to black out those against him.

This bias can be avoided by specifically barring such irrelevant issues and confining the affidavits to the specific issue under litigation. It would go a long way towards making the entire judicial process more transparent and litigant friendly. In fact such simplified one or two page affidavits can also be the perfect nudge to increase transparency to the judicial process.

2 comments:

Anonymous said...

What other biases other than availability bias?
Lawyer bias..in the sense of being in awe of the lawyer representing.
Knowledge bias..a feeling that a lawyer with more knowledge represents the truth.
Biases based on own experiences..

Among the more base ones: Caste, creed, religion, money bias..

What might be the solution?

gulzar said...

I agree there are other biases which come in the way of easy and hassle free access to the judicial system... but all of them are fairly institutionalized ones (endogenous) and cannot be easily addressed or discounted for.

in contrast, the availability bias arising from the use of such affidavits, can be easily minimized. and more than the institutional biases, this may have more immediate and direct influence on the minds of the adjudicating judges.