Talking to Strangers

[okthen]

Recently finished Gladwell’s Talking to Strangers (the title really should be something like Communicating with People).

In the earlier portions of the book there is a discussion about an experiment with Judges and computers in New York, and who/what did a better job at predicting people that should or should not be allowed out on bail. After a sample size over a half million cases from 2008-2013, the study found that the computers were 25% better at predicting people that would not commit further transgressions while out on bail - this despite more limited information than the Judge.

No, I am not suggesting that Judge jobs need to be handed over to AI. I just found it very interesting that one of the aspects the books covers is our inability to read people, and in the instance of the Judges, how we feel the need to look people “in the eye” to see how honest they may be (so the argument goes). The book obviously talks about how we as a society kind of stink at this “sizing people up” thing.

So anyway, we have had phone hearings in SSA for 9.5 months now (and other Agency have been holding phone hearings for years). And clearly the future for SSA is pivoting back to at least some sort of visual hearing. In the short term, through MS Teams, and perhaps back to a more “normal” in-person hearing someday. But the book made me wonder, are we better judges right now in the phone? By taking away our eyes in these hearings (and therefore mitigating our misses in this area), are we actually doing a better job right now?

[okthen]

I am not advocating for either viewpoint. Just found it an interesting concept/thought.

[icemaster]

Dec 29, 2020 15:26:14 GMT -5 okthen said:

Recently finished Gladwell’s Talking to Strangers (the title really should be something like Communicating with People).

In the earlier portions of the book there is a discussion about an experiment with Judges and computers in New York, and who/what did a better job at predicting people that should or should not be allowed out on bail. After a sample size over a half million cases from 2008-2013, the study found that the computers were 25% better at predicting people that would not commit further transgressions while out on bail - this despite more limited information than the Judge.

No, I am not suggesting that Judge jobs need to be handed over to AI. I just found it very interesting that one of the aspects the books covers is our inability to read people, and in the instance of the Judges, how we feel the need to look people “in the eye” to see how honest they may be (so the argument goes). The book obviously talks about how we as a society kind of stink at this “sizing people up” thing.

So anyway, we have had phone hearings in SSA for 9.5 months now (and other Agency have been holding phone hearings for years). And clearly the future for SSA is pivoting back to at least some sort of visual hearing. In the short term, through MS Teams, and perhaps back to a more “normal” in-person hearing someday. But the book made me wonder, are we better judges right now in the phone? By taking away our eyes in these hearings (and therefore mitigating our misses in this area), are we actually doing a better job right now?

Not advocating either one but I guess the under lying question would “What is the predictor?”.   If using the analogy above, the predictor could be predicting the number of people who should or should not be receiving benefits.

To me, it really comes down to balancing the nuances. If we rely on our vision to check for those subtle nuances during the hearing that may tip us in one way (approval) or the other (denial), a rational argument could be made that removing this aspect via phone hearings which actually ensures judges can give a more objective opinion (I have NO clue if the stats bears that out but the agency will end up having a full year of data to compare) with less reliance on in-person nuances.

Again, as you stated, I’m not advocating for one way or the other but it is an interesting thought.  

[fowlfinder]

The other item of consideration comes from the other side. Does the Claimant feel like they have been "heard" if it is just over the phone? Do they need the ability to look the judge in the eye?

For many cases telephone hearings have worked just fine (including those I lost and should have lost). The question remains, does a Claimant get something extra from being across the table from the decision maker? And if so, is that "something" worth the extra cost? I am not sure if I have the answer, but its worth noting there is more in the grist than a better decision.

[lurkerbelow]

Dec 29, 2020 17:50:10 GMT -5 fowlfinder said:

The other item of consideration comes from the other side. Does the Claimant feel like they have been "heard" if it is just over the phone? Do they need the ability to look the judge in the eye?

For many cases telephone hearings have worked just fine (including those I lost and should have lost). The question remains, does a Claimant get something extra from being across the table from the decision maker? And if so, is that "something" worth the extra cost? I am not sure if I have the answer, but its worth noting there is more in the grist than a better decision.

I don't think most claimants worry about the judge so long as they get disability.

[Pixie]

Dec 29, 2020 15:26:14 GMT -5 okthen said:

Recently finished Gladwell’s Talking to Strangers (the title really should be something like Communicating with People).

In the earlier portions of the book there is a discussion about an experiment with Judges and computers in New York, and who/what did a better job at predicting people that should or should not be allowed out on bail. After a sample size over a half million cases from 2008-2013, the study found that the computers were 25% better at predicting people that would not commit further transgressions while out on bail - this despite more limited information than the Judge.

No, I am not suggesting that Judge jobs need to be handed over to AI. I just found it very interesting that one of the aspects the books covers is our inability to read people, and in the instance of the Judges, how we feel the need to look people “in the eye” to see how honest they may be (so the argument goes). The book obviously talks about how we as a society kind of stink at this “sizing people up” thing.

So anyway, we have had phone hearings in SSA for 9.5 months now (and other Agency have been holding phone hearings for years). And clearly the future for SSA is pivoting back to at least some sort of visual hearing. In the short term, through MS Teams, and perhaps back to a more “normal” in-person hearing someday. But the book made me wonder, are we better judges right now in the phone? By taking away our eyes in these hearings (and therefore mitigating our misses in this area), are we actually doing a better job right now?

I may be disremembering as it has been a long time ago, but isn't the purpose of bail to ensure the accused returns to court? In NY the propensity to commit further crimes may be a factor to be considered, but I would think the major concern would be future court appearances and not the likelihood of commenting other crimes. Pixie

[hamster]

Pixie, in hindsight, do you think “forgetting” would be preferable to “disremembering”?

Fondly, Hamster

[Pixie]

Dec 30, 2020 10:46:21 GMT -5 hamster said:

Pixie, in hindsight, do you think “forgetting” would be preferable to “disremembering”?

Fondly, Hamster

Disremember is actually a verb that is defined as a failure to remember. It was popular back in latter half of the 19th century, but quickly tailed off in use after the beginning of the 20th Century. I prefer to remember the good ole days.

In Spanish, our 2d national language, it translates to fallar en recordar. Pixie

[SPN Lifer]

Dec 30, 2020 9:34:17 GMT -5 Pixie said:

I may be disremembering as it has been a long time ago, but isn't the purpose of bail to ensure the accused returns to court? In NY the propensity to commit further crimes may be a factor to be considered, but I would think the major concern would be future court appearances and not the likelihood of [committing] other crimes. Pixie

In federal court, these are dual, co-equal objectives, at least with respect to violent crimes.

Release on conditions or detention are imposed to "reasonably assure the appearance of the person as required and the safety of any other person and the community". 18 U.S.C. § 3142(e)(1).

www.law.cornell.edu/uscode/text/18/3142

[aljhopefully]

Yeah, traditionally federal pretrial detention was limited to assuring appearance at court. But as noted 3142 was amended in 1984 to also allow detention on the basis of dangerousness. It was intended to be the exception rather than the rule, but pretrial detention has consistently risen since.

I wonder if the computer in the study relied on the points-based system pretrial services officers use in gauging pretrial risk assessment. Maybe that's the future, just a bunch of 0s, 1s, and 2s to describe a human being's background and worthiness of a legal right. Sounds dystopian, but a more objective test may help avoid judges locking up low risk offenders.

[nylawyer]

In NY, propensity to commit another crime is not a bail factor at all. The only issue is whether absent bail the defendant will appear in court and follow all other orders.

That was just one of the problems with the study being referenced.

Another is that a majority of arraigned defensants have only been charged with a low level misdemeanor, but have numerous prior convictions (highest I ever saw was somewhere over 700). Because of the low level nature of the crime, a judge might well release the defendant, even knowing that it is unlikely they are going to make through the entire case without another arrest. (In fact, NY law no longer even allows to be set in these cases).

There is also no way to evaluate those defendants that the computer would have released but whom the judge kept in.

Finally, if a defendant whom the computer would have set bail on was released by the judge, and that defendant's case pends for two years, and he has 23 appearance during that time, and on 22 of those dates the defendant promptly appeared while on one date there was some confusion as to the date leading the defendant to show up the following date, most judges would have looked at the release decision as the correct one. But the computer would consider it to have been a mistake.

In summary, the computer would have set bail in a lot more cases than judges did. It's hard to call that the wave of the future, since NY (and other states) have subsequently gone the opposite way and made it more difficult for judges to keep the defendants in.

[hopefalj]

It is an interesting question that caused me to do some introspection (as well as download a new book via Libby). My initial thought was it makes no difference to me how the hearing is done. If what I hear lines up with the record, great. If it doesn’t and I’m hearing something way out of line with the record, whether in person, over video, or on the phone, it’s not going to work out. I’ve never relied heavily on presentation or felt the need to stare into someone’s soul to get a gut feeling.

I’ve long believed gut feelings lead to inconsistency and unfairness in the process simply because one person is able to present in a better manner than another or, dare I say, put on a better performance than another person. I put more stock in 2+ years of records than a 45-60 minute interaction I have with someone when benefits are on the line. It probably also comes from writing decisions that were nearly impossible to support the decision based on the record because the judge disliked or felt really sorry for the person after meeting them.

In looking at my numbers over the last three years, my favorable rate is essentially the same when you adjust for dismissals since those have plummeted in the absence of no-shows on phone hearings. This leads me to believe that it makes no difference to my decision making process whether the person is right in front of me or calling me from North Carolina. Maybe I’m consistent in focusing more on what is said than how it’s said or how the person looks when they say it. There are obviously a number of ways to do the job and I’m not saying everyone should do things the way I do, but this is the way I have done it without having sleepless nights, bias complaints, or difficulty with reviewing bodies.

I think fowlfinder makes the best point from my perspective (though lurkerbelow also makes an excellent point). If the claimant wants an in-person hearing and feels like it’s the only way to get a fair hearing, I’m fine with that. If the claimant wants video, let’s do video. If the claimant wants a phone hearing, even in the long, long ago when they weren’t the only way to do them, I’ll do that. I want the claimant to feel like they had the best chance possible to explain what’s going on in whatever way they feel they can best do it. But again, it’s more important to me what is said at the hearing than what the person looks or acts like during our brief interaction.

[lurkerbelow]

Dec 31, 2020 19:36:20 GMT -5 hopefalj said:

I’ve long believed gut feelings lead to inconsistency and unfairness in the process simply because one person is able to present in a better manner than another or, dare I say, put on a better performance than another person. I put more stock in 2+ years of records than a 45-60 minute interaction I have with someone when benefits are on the line. It probably also comes from writing decisions that were nearly impossible to support the decision based on the record because the judge disliked or felt really sorry for the person after meeting them.

Great point, and I've prefer ALJs that take this approach since it is easier and more sound to write.  I am quite sure that somebody up above would love to take ALJs out of the equation and just make quick decisions.  Those people are part of the reason why Article II courts have work, and I hope that neither side wins.  It's either death by incompetence or death by a thousand paper cuts.