{"id":3875,"date":"2025-03-04T21:11:54","date_gmt":"2025-03-04T21:11:54","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3875"},"modified":"2025-03-04T21:12:34","modified_gmt":"2025-03-04T21:12:34","slug":"timing-isnt-everything-but-it-matters-a-lot","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2025\/03\/04\/timing-isnt-everything-but-it-matters-a-lot\/","title":{"rendered":"TIMING ISN’T EVERYTHING, BUT IT MATTERS, A LOT"},"content":{"rendered":"
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It is late in the afternoon, on the fourth day of a five-day jury trial, and my soon-to-be-disbarred opposing counsel settles in for his mid-trial, afternoon, nap. I make my obligatory \u201cdo you see this guy?\u201d eye contact with the judge. The judge sees. With a slight nod and a shrug, the decision is made to let the man sleep.<\/div>\n
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No one in the courtroom is at their best this afternoon. One juror\u2019s head intermittently dips suggesting he might soon join opposing counsel in a nap. Others, literally, navel gaze. The most alert jurors appear decidedly more interested in my silent correspondence with the judge than the trial testimony. When my co-counsel whispers a question to an associate, the response is something to the effect of \u201cI\u2019m sorry, I didn\u2019t catch what the witness said.\u201d For longer than I care to admit, I ruminate on the absurdity of my client, a careful and erudite lawyer, being sued for legal malpractice by a man who is sleeping through trial testimony for the third afternoon in a row. It takes blunt, mental, force to get myself back in the game.<\/div>\n
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Why is everyone operating so poorly? If you were to ask Daniel Pink, the author of \u201cWhen: The Scientific Secrets of Perfect Timing<\/i>,\u201d he would tell you that it\u2019s just a matter of time. The participants of this courtroom scene don\u2019t know it, but they happen to be approaching the least productive time of day – the afternoon \u201ctrough\u201d \u2013 and a minute in which, on balance, most of us are at our functional and emotional worst\u2026 2:55 pm.[1]<\/a><\/u><\/div>\n
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The dramatic effect of the time of day on many non-legal professions is well known. For example, any medical malpractice lawyer worth their salt will tell you to schedule surgeries early in the morning. Research supports this view. At 9:00 am, the risk of an adverse event involving anesthesia is about 1 percent. At 4:00 pm, the risk of an adverse event is over four times greater. [2]<\/a><\/u>\u00a0For each hour that passes in the day, endoscopists are 4.6 less likely to detect polyps during colonoscopies.[3]<\/a><\/u> If you see a medical professional in the afternoon, know that they are washing their hands 38 percent less than they are in the morning. The consequences of this circadian fatigue: skyrocketing probabilities of infection and injury.[4]<\/a><\/u><\/div>\n
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With these studies in mind, Pink posits that timing deserves greater consideration in our professional lives. For trial advocates and litigators, this would be a worthwhile goal. If the cognitive abilities of our judges and jurors don\u2019t stay the same throughout the day, are advocates doing enough to cater to the deteriorating performance of our audience? A study, involving the effect of time of day on the performance of our legal factfinders, demonstrates why advocates should consider heeding Pink\u2019s advice.<\/div>\n
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While it is reasonably well-settled that people are less functional late in the afternoon, the more interesting question is: How do factfinders make decisions at these inopportune times of the day? According to a study conducted by Professor Galen Bodenhausen, they appear to rely on shortcuts to avoid doing the hard analytical work that they would normally do (at high-functioning times of day).[5]<\/a><\/u> Bodenhausen hypothesized that:<\/div>\n
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\u2026if cognitive capabilities and motivation fluctuate as a function of time of day, it follows that reliance on stereotypes in the judgment process should also vary as a function of time of day, other things being equal.<\/div>\n
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In other words, when we are not sufficiently able and motivated to carefully consider relevant evidence, do we cheat in order to simplify our tasks? The answer appears to be \u201cyes.\u201d<\/div>\n
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To test his proposition, Bodenhausen asked his study participants to read fact patterns about the alleged misconduct of three individuals to assess the likelihood of their guilt. The fact patterns involved an individual accused of assault, an individual accused of selling drugs, and an individual accused of cheating on a final exam. Each study participant was given identical fact patterns with one exception. For half of the participants, the defendants were identified as Robert Garner, Mark Washburn, or a general student. But, for the other half, the defendants were identified as Roberto Garcia, Marcus Washington, or a star athlete. The idea was to interject racial and other stereotypes to see if the \u201cjurors\u201d were more likely to succumb to unfair stereotypes at nonoptimal times of day.<\/div>\n
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That is precisely what happened. When the \u201cjurors\u201d deliberated in the morning, they treated all of the defendants the same. The stereotyped defendants (Roberto Garcia, Marcus Washington, and the star athlete) were as likely to be innocent in the morning as the non-stereotyped defendants (Robert Garner, Mark Washburn, and the student). But, when the jurors deliberated in the afternoon, they were significantly more likely to find Roberto Garcia, Marcus Washington, and the star athlete guilty than the non-stereotyped defendants.[6]<\/a><\/u> Chillingly, it appears that (1) time of day was dispositive of guilt in identical fact patterns, and (2) factfinders seek to replace an analytical approach to their task with a psychologically easier\/lazier framework at non-optimal times of day.<\/div>\n
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What implications does this have for trial advocates? I asked several colleagues how they might consider incorporating these considerations into their practice, and the answers might be useful to think about:<\/div>\n
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