Emotional Triggers and Judicial Stress When Dealing with Difficult Populations

Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, Georgia [email protected]

www.tomrawlings.com

Is This What We Do?

http://www.youtube.com/watch?v=S_AWJmnTgFc

Questions, Questions

 Do the parties in your court ever disgust or frighten you?

 Does what you hear in court ever bring up bad memories of your own experiences?

 Do you ever find yourself unaffected while listening to horrendous, tragic testimony?

Questions, Questions

 Have you ever found yourself hearing cases against people who have done things that you’ve done or thought about doing yourself?

 Have your family and friends stopped asking what you’re doing in court for fear you might tell them?

 Do you consider Paris Hilton, Lindsay Lohan, Michael Jackson, and Brittney Spears normal?

Topics for Discussion

 Emotional Triggers and Personal Style, and Difficult Personalities: How they Affect Your Thought Processes  The Effects of Stress and Bias on Decision making  Vicarious Stress: Its Effects, Coping Strategies and Self-Checks  Sticking in There and Doing Your Job

What you should leave with:

     A better understanding of the dynamics of personalities in court: yours and the parties’ An understanding of how what happens in court can affect your decision-making and how what happens to your personally can affect your court.

Questions to ask yourself when considering whether you are giving a case the treatment it deserves.

Coping skills to deal with the pressures of tough cases involving tougher parties.

Reinforcement of your ability to do your job.

You’re not a Tabula Rasa

   It’s expected that you will come to the bench with experiences, common sense, values, triumphs and failures.

How do you ensure that you properly incorporate your life experiences into your decision-making without letting them lead you down the wrong path?

One solution: You could use algorithms and decision trees for everything you do.

But I’m not a Machine!

1.

People want to be liked and respected by others who are important to them.

2.

The desire to be liked and respected affects people’s behavior.

3.

Judges are people, too.

 Lawrence Baum, Judges and Their Audiences (Princeton University Press, 2006).

RENO (AP) — A manhunt was on Tuesday for a pawn shop owner who is charged with killing his estranged wife and wanted for questioning in the sniper shooting of a judge in their divorce case, police said.

The Judicial Decision-making Cycle

Facts and Law Vicarious Trauma Personal History Personal Style Emotional Triggers Stress Decisional Shortcuts Biases Perceptions Judgment and Solution

The Judicial Decision-making Cycle

Facts and Law Vicarious Trauma Personal History Personal Style Emotional Triggers Stress Understand Impact Understand And Reduce Understand And Minimize Decisional Shortcuts Biased Perceptions Judgment and Solution

Personal Styles



Prison Guard

 Authoritarian  Concerned about self           Command & Control Demands Yells & Screams Ultimate goal is for kids to obey and comply Not interested in teaching Often impatient Shallow or absent relationships Sees rules or “the program” as the most important thing Sees value in kids only in how they perform Power is everything  From Brasler, “Working with Difficult Clients”

Personal Styles

 Buddy  Permissive          Concerned about self Wants kids to like them Confuses own desire to be liked with caring about kids No boundaries Wants to have “good relationships” with kids instead of helping them to learn Minimal or no setting of limits Often overidentifies with kids Sometimes rescues or enables kids Pleads and whines for kids “to behave”  From Brasler, “Working with Difficult Clients”

Personal Styles

      Effective Counselor  Authoritative      Concerned about self & kids Mostly concerned about helping kids to learn Firm boundaries Flexible with their time Patient Knows their limits, and works alongside other adults as a team Believes that kids have strengths they can use Empathetic Sets limits consistently and appropriately Works well with others  From Brasler, “Working with Difficult Clients”

Personality Disorders

    Personality disorders are a maladaptive pattern of how one deals with the world. The person is still in touch with reality They are competent to make poor decisions Tend to be inflexible in how they interact, but the reason is not due to a psychotic belief.

 Used with Permission of David Walker, M.D., Departments of Psychiatry, Mercer University and Emory University; Chief Forensic Psychiatrist, Central State Hospital, Milledgeville, GA

Narcissistic Personality

    The Narcissistic personality is one who believes that only special people can really relate to them. Just because you are a judge doesn’t mean you are special enough.

They may try to educate you on what you are doing wrong.

The main point is that they are not psychotic and should be dealt with as anyone else would be.

 Used with Permission of David Walker, M.D., Departments of Psychiatry, Mercer University and Emory University; Chief Forensic Psychiatrist, Central State Hospital, Milledgeville, GA

Obsessive-Compulsive Personality

    Obsessive-Compulsive personality disorder individuals are likely to show a history of not being able to function because they get lost in the details They do not delegate because no one else can do it right They cannot see the forest for the trees They are not psychotic  Used with Permission of David Walker, M.D., Departments of Psychiatry, Mercer University and Emory University; Chief Forensic Psychiatrist, Central State Hospital, Milledgeville, GA

Antisocial Personality

 Anti-social personality disorder  Conduct disorder in childhood     Ongoing adult criminal behavior Need limit setting and are at risk for acting out because they do not care about the system Likely to try to malinger The most severe may be “psychopaths”  Used with Permission of David Walker, M.D., Departments of Psychiatry, Mercer University and Emory University; Chief Forensic Psychiatrist, Central State Hospital, Milledgeville, GA

Paranoid Personality

   A paranoid personality will show a long history of paranoid beliefs Often you will need an evaluation to differentiate them from a paranoid schizophrenic.

Expect a long history of paranoia without hallucinations or delusional beliefs  Used with Permission of David Walker, M.D., Departments of Psychiatry, Mercer University and Emory University; Chief Forensic Psychiatrist, Central State Hospital, Milledgeville, GA

Borderline Personality

    Alternate between seeing people as all good or all bad, situations as ideal or disastrous Impulsive, paranoid, and unable to control anger.

Chameleon-like personality Unstable and intense personal relationships.

 DSM-IV

Borderline Personality Disorder: Their Triggers

      Feeling people are unpredictable Perceiving Abandonment Feeling Invalidated Receiving Criticism Being Labeled and Stigmatized Being told to “Snap Out of It.”  Mason & Kreger, Stop Walking On Eggshells: Taking Your Life Back When Someone You Care About Has Borderline Personality Disorder 113-115 (New Harbinger Publications 1998)

Emotional Triggers

   Scenario #1:  The three year-old daughter of a single mother who lives in subsidized housing dies after discovering and eating some “rock candy” (it was crack) that her sister found in a container on Mom’s dresser. The sister is removed to foster care and the mother charged with the child’s death.

What analogies to your own life can you find in this story?

Are they valid?

Emotional Triggers

   Scenario #2:  You’re covering a DV non-jury calendar. In walks a woman you’ve seen in your court on three prior occasions. As in the past, she is applying for a TPO against her abusive husband. Last time she swore to you she was going to a DV shelter and leave him. She presents with visible facial bruises and says she’s afraid he’ll hurt her or the children and that’s why she hasn’t left.

Can you be fair? Why or why not?

What would you tell her? Why?

Emotional Triggers

   Scenario #3:  You’re holding a detention hearing on a 16 year-old you’ve seen twice before. He has borderline IQ and, like the prior occasions, has been charged with early-A.M. burglaries. The last time you ordered MH involvement. His mother finally shows up an hour late, says she doesn’t know what to do with him, that his grandmama’s supposed to keep him. “I’m disabled and I can’t look after him,” Mama says.

Are you angry? At whom? Why or why not?

What do you say to these people, what do you do with them, and why?

Paging Dr. Judge!

   Trauma physicians are required to diagnose and treat very sick and injured patients on whom they have little history or information.

Especially with the rise of drug courts and therapeutic justice, the same can be said of judges.

Therefore: Looking at medical decision making should help us determine what we do right and wrong.

 Jerome Groopman, M.D. How Doctors Think.

Stress and Decision-making

  Yerkes-Dodson law on task performance:   too little stress or too much stress, you won’t perform well.

“Cognition and emotion are inseparable.” But: stress also causes us to take analytical “short-cuts” that result in the wrong “diagnosis.”

Shortcut errors: stereotyping

   At a city hospital in the early 70s, a dirty young male patient passed out on museum steps is brought to E.R. semi-conscious and babbling. Doc assumes __________.

Attribution error: if patient fits a negative stereotype, it must be that problem.

In other words, people have an unjustified tendency to assume that a person's actions depend on what "kind" of person that person is rather than on the social and environmental forces that influence the person

Shortcut errors: stereotyping



Representativeness error

 Your thinking is guided by a prototype, so you fail to consider possibilities that contradict the prototype and thus attribute your symptoms to the wrong cause.



Affective error

 We prefer what we hope to the less appealing alternatives.

Shortcut errors: stereotyping



“Be wary of `going with your gut’ when what’s in your gut is a strong emotion about a patient, even a positive one.”



Jerome Groopman

Shortcut errors: Availability

 At Cook County hospital, the last 10 men who presented to the E.R. complaining of trembling and smelling of alcohol had D.T.’s.

 Therefore, the 11 th one has _______.

 Availability error.

 the tendency to judge the likelihood of an event by the ease with which relevant examples come to mind.

Anchoring and Confirmation Bias

  Anchoring  A shortcut in thinking where you don’t consider multiple possibilities but quickly and firmly latch onto one. Confirmation bias   You confirm what you expect to find by selectively accepting or ignoring information.

“Distortional pattern recognition.” Cherry picking a few features, rationalizing contradictory data.

Anchoring and Confirmation Bias

 Prostate cancer example.

 Surgeons, radiation therapists, and chemotherapists will each recommend the approach they know best.

 A chance encounter with any one may guide patient to choose therapy of that discipline, which is a false choice.  Groopman, 154

Desensitization



How do you avoid becoming desensitized to bad cases?

Implications for Court Practice

 When we have strong negative reactions to people in our court, we are much more likely to make a decision riddled by attribution error.

 “Physicians who dislike their patients regularly cut them off during the recitation of symptoms and focus on a convenient diagnosis and treatment.” – Groopman, 25  When we have strong positive reactions, we are more likely to make a decision riddled by affective error and minimize the problem.

Implications for Court Practice

    Handling too many tragic or emotionally overwhelming cases can result in availability error.

“Familiarity breeds conclusions and contempt for alternatives.” “Being quick and shooting from the hip are indications of anchoring and availability.” “Danger of being lulled by the monotony of the mundane.”  -Groopman

Implications for Court Practice



Practice humility: “I’m right because I usually am” is the cause of many errors.



Don’t be afraid of uncertainty.

 “The denial of uncertainty, the proclivity to substitute certainty for uncertainty, is one of the most remarkable human psychological traits.”  Jay Katz, physician who teaches at Yale Law:

Implications for Court Practice

 Vary Caseloads! Dealing with the same kind of cases all the time results in:   Monotony of the mundane Availability error  Analytical shortcuts  Groopman  Of course, we are encouraged to specialize!

  One family, one judge Specialized dockets

Implications for Court Practice

Stereotypes Biases Shortcuts

Practical example

    Belief Based on Personal Authoritarian Style: Yelling works. Emotional Trigger: Those who argue back.

Scenario: Woman ordered to drug treatment insists loudly in court that she has no drug problem.

Visceral Reaction: Don’t you talk back to me!

Practical example

 Decisional shortcut: Treatment for a woman who yells at the Judge is for the Judge to scold her, hold her in contempt, jail her.

 Problem: She’s got a borderline personality, and you didn’t take the time to figure that out.

Implications for Court Practice



Criteria for decisionmaking:

 The judge should try to take the perspective of all parties before the court prior to reaching a decision.

 The judge should try to remain open to the newness of each case, even if it resembles previous ones, while also subjecting new understandings to scrutiny through comparison with past experiences .

 Minow and Spelman, “Passion for Justice,” 10 Cardozo L. Rev 37



Implications for Court Practice

Criteria for decision-making:  The judge should not disguise how he or she actually reached the decision and should explain it not through post hoc justifications but also through intuitions and reasons for selecting one justification over other possibilities.

 The judge should confront the difficulty of rejecting the arguments of a party.

 The judge should acknowledge what it feels like to have power over others.

 Minow and Spelman, “Passion for Justice,” 10 Cardozo L. Rev 37

A Question for You!

 In what sort of cases do you rule immediately, and in what sort of cases do you defer your ruling? Why? Do your criteria for ruling from the bench vs. “getting back to you later” have anything to do with the types of cases and your emotional reaction to them?

Vicarious Trauma



What is it?

 “The transformation that occurs within the therapist as a result of empathic engagement with clients’ trauma experiences and their sequelae.”  Pearlman and Mac Ian, Vicarious Traumatization: An Empirical Study of the Effects of Trauma Work on Trauma Therapists, Professional Psychology: Research and Practice 1995, vol. 26, no 6, 558-565  Symptoms similar to PTSD:  cognitive (lack of concentration), emotional (anger anxiety, loss of empathy, sense of isolation  Jaffe et al, “Vicarious Trama in Judges,” Fall 2003 Juvenile and Family Court Journal 1 (NCJFCJ).

Vicarious Trauma



What’s it got to do with me?

  In a 1997 study of sex offender case managers, 62% of respondents identified themselves as experiencing secondary trauma including flashbacks, bad dreams, and intrusive images.

More likely to have anxiety, depression, and isolation, tended to view the world as less predictable than their colleagues, including avoidance (of people, activities) and intrusion (nightmares, images)  Rich, K. :Vicarious Traumatization: A Preliminary Study,” in S. Edmunds (Ed) 1997, Impact: Working with Sexual Abusers, Brandon, VT The Safer Society Press

Vicarious Trauma

 

What’s it got to do with me?

Help wanted! Applicants must be willing to do the following:  Protect victims from sexual assault       Hold sexual offenders accountable for their actions Investigate every detail of sex offenders’ lives Be exposed to the dark side of humanity on an ongoing basis Carry the burden of community safety Risk personal and professional isolation and Run a high risk for secondary trauma  Center for Sex Offender Management, Secondary Trauma and the Supervision of Sex Offenders: A Training Curriculum, available at http://www.csom.org/train/trauma/index.html

Vicarious Trauma



What’s it got to do with me?

   Study of 105 judges attending one of four DV training seminars. Mean age 51; average experience 10 years 63% of judges in the survey experienced one or more short or long term VT symptoms: sleep disturbances, intolerance of others, physical complaints, depression, or a sense of isolation.

More time on bench, more symptoms.

 Jaffe, supra.

Vicarious Trauma



What’s it got to do with me?

 An empirical study shows that those with a personal history of trauma are more likely to be affected by vicarious trauma.

 Pearlman and Mac Ian, “Vicarious Traumatization: An Empirical Study of the Effects of Trauma Work on Trauma Therapists,” Professional Psychology: Research and Practice 1995, vol. 26, no 6, 558-565

Implications for Court Practice

 Vary Caseloads:  Study of victim therapists: Clinicians who had mixed caseloads (sexual assault and non sexual assault) reported less vicarious trauma

.

 Cunningham, Maddy, Social Work Oct. 2003 v. 48#14 pp 451-459  But, again – we’re pushed to specialize!

  Specialized dockets One family, one judge

Implications for Court Practice

   Keep connected!

Judges “work in isolation, they cannot consult about a case, they see horrific crimes, make weighty decisions and have to keep their mouths shut about everything.” -Isaiah Zimmerman.

A Study of Sexual Assault Advocates reports that having the opportunity to discuss problematic cases with colleagues helps alleviate impact of VT.

 Anderson, “Vicarious Trauma and Its Impact on Advocates, Therapists and Friends,” 612 Research and Advocacy Digest 1 (March 2004).

Implications for Court

   Keep connected!

Maryland “Judicial Alter Ego” program.

 A cadre of attorneys is available to take anonymous complaints from attorneys about obnoxious or inappropriate judicial behavior and informally discuss it with the judge.

Sending out anonymous “temperature-check surveys” to attorneys.

Implications for Court

  Develop a self-care plan to avoid vicarious trauma!

Jaffe survey of judges’ self-care plans:    Personal: Physical activity (80%); Rest and relaxation (74%); social contacts (65%).

Professional: Attending workshops (60%); Peer support (53%); reading educational materials (30%) Societal: Public speaking on the role of the courts (41%); coordination of courts and community service (37.6%); Court reform to facilitate administration of justice (29.4%)

My personal self-care plan

Implications for Court

 Don’t Be Afraid to Be Human!

 “The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice . . .. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." Liteky v. United States, 510 U.S. 540, 550-551 (U.S. 1994)

Implications for Court

 

Stick in There and Do Your Job!

“Bentley's attorney learned that Bentley, who is currently incarcerated in the Mobile County jail while awaiting trial, had sent several letters to Judge Thomas. The letters contained threats and included statements that Judge Thomas had "sold [his] soul to Lucifer." One letter contained a dead lizard with the caption that "Judge Thomas would die like his lizard spy.“ Bentley filed a motion for Judge Thomas to recuse on the ground that Judge Thomas was prejudiced against him because of the threats contained in the letters.”  Ex parte Bentley, 849 So. 2d 997, 997-998 (Ala. Crim. App. 2002)

Implications for Court

 Stick in There and Do Your Job!

 “The actions of the defendant in striking his attorney and the trial judge were certainly outrageous and called for extraordinary detachment on their part. Despite the gravest of provocations the attorney and the judge, as we have observed, carried out their responsibilities with professional competence and, considering the circumstances, even grace. We cannot presume a failure of impartiality of a trial judge even under extreme provocation. Judges are called upon to preside over the trial of onerous causes and persons. By definition, however, a trial judge is required to ignore provocations and pressures, whether public or from individuals.”  People v. Hall, 114 Ill. 2d 376, 407 (Ill. 1986)



Implications for Court

Stick in There and Do Your Job!

 “[T]o suggest that they suffer from judicial stress is to cast them as victims. And what that will ultimately do is further diminish their public image, raising even more doubts about their ability to render judicious and rational judgments. For years, judges have been getting trained to be more sensitive. A decade ago, the pressure was on to make it mandatory for them to take sensitivity training so they would learn about the emotional fragility of victims and their families. Some of us think that was a bad idea, that it shifted their focus away from "facts" and too far into "feelings." What I'm wondering is whether we can afford to take them even further, sucking them into claiming their own victimized status, training them to be sensitive to their own emotions. What will happen to our justice system if our judges become as self-absorbed as everyone else?  Tana Dineen, “The victims in black robes,” Ottawa Citizen 8/20/02 avail at www.tanadineen.com