Gass Weber Mullins LLC

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Brennan, Michael Cahill, Brian Christenson, Teirney Dombrowicki, Christopher Elger, Daniel Franke, John Gass, J. Ric Hanan, Beth Heaton, Paul Kennedy, Daniel McCarthy, Amelia Mullins, Thomas Stevens, Shawn Turek, David Weber, Ralph

As trial lawyers we pretend that all our decisions — including if, when and how to settle a case — are rooted in logic. We create decision trees, we research jury awards, we plumb the depths of our hard-won experience and as a resultwe simply set emotion aside and give our clients the right advice. Our clients in turn weigh our advice dispassionately and reach a sensible decision based upon even-handed balancing of pros and cons, risks and rewards.
Well, the human brain isnt so simple. It turns out that the emotional part of our brain has a simple, powerful flaw known as loss aversion. As demonstrated by psychologists Kahneman and Tversky, and as described in Jonah Lehrers How We Decide, the pain of loss is twice as powerful as the pleasure of a gain. Accordingly, low-yield bonds are popular because they seem a safe bet, even though over time stocks outperform bonds by a large margin. The fear of losses makes investors more willing to accept a measly rate of return. Similarly, investors are quicker to sell stocks that have increased in value, while stubbornly hanging on to those that are losers: selling shares that have decreased in value makes the loss tangible. We try to postpone the pain for as long as possible; the result is only more losses.
It turns out that loss aversion is part of a phenomenon known as negativity bias: bad is stronger than good. (see, eg., the current deluge of political campaign ads). This proves out in experiments in which participants are presented with two mathematically identical risks, but their decisions change markedly depending on whether the alternatives are framed as possible gains versus possible losses.
For example, in part 1 you are given $50 and offered two choices: either you can take a gamble that gives you a 40% chance of keeping the $50 and a 60% chance of losing everything, or you can forego the gamble and automatically keep $20.
Now you play the game again, and while the first option is the same taking a gamble with a 40% chance of keeping $50 and a 60% chance of losing everything. The alternative option, the sure thing, changes only in its description from getting to keep $20 to having to lose $30. (Yep, read it again having to lose $30 out of $50 is precisely the same as getting to keep $20 out of $50).
So guess what our mind does to us? Even though the two parts of the experiment present identical options from a mathematical perspective, when the choice is framed as gaining $20, 58% take the money and 42% pass on the 40% chance of keeping $50. But when the choice is framed in terms of losing $30 (again, the same thing), now only 32% take the sure thing and 68% roll the dice! How We Decide, 105-06.
Thus, in settlement negotiations, the clever bargainer will frame the other sides choices in terms of what they will lose if they go forward versus what they can gain by settling now. Those who dont understand how their excited amygdala can mislead them will focus on the surge of emotion they feel when they anticipate the pain of loss, and then either pay more or take less than their reason would say they should.
How to avoid this trap? See the next post.

Seventy-two years ago Justice Stone authored an Opinion upholding Congressional power to declare certain foods adulterated and thus not to be shipped in interstate commerce. United States v. Carolene Products Co, 308 U.S. 144 (1938). In laws most famous footnote, Justice Stone also cautioned that while this law was plainly valid, there were circumstances when the Courts deference to political processes might be limited.
One such circumstance, he noted, could be legislation that failed to account for the interests of those without effective representation in the halls of government:
whether prejudice against discrete and insular minorities

The footnotes cautionary paragraphs did not focus on either the words or the intentions of those who drafted the Constitution, as some insist must be done. Instead, they focused on the dynamics of government and plainly assume the existence of two national objectives government by the people, and government for the whole people and focus attention on the Courts special ability to effectuate them. Louis Lusky, By What Right? 109 (1975).
Against this background, lets consider the debate over the construction of a 13-story Islamic Community Center and mosque about two blocks from the World Trade Center site. This center, originally named Cordoba House (intended to invoke the model of peaceful coexistence among Muslims, Jews and Christians in Cordoba, Spain during the 8th-11th centuries), renamed Park51 (its street address), is widely referred to as the Ground Zero Mosque.
Polls report consistent majority support for the Muslims legal right to build their center where they wish. Some support the project, seeing it as a way to demonstrate respect and tolerance. Others contend its location insults the memory of those killed that day, like bringing a pig into the Holy Temple, or putting a German cultural center on top of a death camp, or building a Japanese cultural center across from Pearl Harbor.
I wonder about linking an entire religion to the acts of the 9.11 terrorists and equating the building of this center with an endorsement of the attacks. Yes the 9.11 murderers claimed to be acting in the name of their religion, but that no more justifies wholesale rejection of Islam than would David Koreshs conduct in Waco justify wholesale rejection of Protestants. (Indeed a catalogue of acts done in the name of religion that we would all recognize as atrocities would not be brief).
Jonah Lehrers book, How We Decide, makes accessible to we lay people the insights neuroscience is gaining through the use of brain imaging technology. Lehrers point is that the assumption of rationality versus emotion is wrong its not how the brain works. Rather, our decisions are a blend of passion and logic. The emotional brain combines with the prefrontal cortex and together they move us to action. Lehrer credits Aristotle with appreciating how the rational soul works with emotion to make sure that emotions were intelligently applied to the real world.
Anyone can become angry – -that is easy, Aristotle wrote.

As Lehrer comments, [t]hat requires some thought.
It remains to be seen how the mosque issue will play out. But as we recognize the power that emotions quite understandably play in our group decision-making, perhaps neuroscience has confirmed the wisdom of Carolene Products approach. Thus, when we the people face difficult decisions in which emotions are powerfully stirred, the Courts searching judicial inquiry can help ensure both government by the people and government for the whole people.

When judges are in the headlines for matters other than deciding the cases before them, it is usually not a good thing.
Unfortunately, much of the news about Wisconsin’s judiciary the past few years has been of a political character. The Wisconsin Supreme Court has drawn attention for judicial campaigns and their financing, internal discipline and when a justice should recuse herself or himself from a case. A lawsuit recently challenged Wisconsin’s code of judicial conduct on whether judges can join political parties, personally raise money and endorse partisan political candidates.
Wisconsin is not the only state with a high court in the headlines other than for its decisions. Michigan’s Supreme Court has undergone partisan fights recently, and the U.S. Supreme Court held that a justice of the West Virginia Supreme Court had to recuse himself from a case involving a company whose president spent $3 million to re-elect the justice while the company’s appeal was pending.
A robust debate about a branch of government is always welcome. But the discussion surrounding Wisconsin’s courts sometimes assumes that law is just another name for politics. And the more politics dominates the discussion, the more the state’s judiciary may be paying a price.
The political drumbeat around courts can sap their strength. Without a constant reminder of the judiciary’s proper role, the distorted view that “law is just another name for politics” flourishes.
The role of courts in adjudicating cases is different from politics.
Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters. Sometimes the judicial role means court decisions run counter to current public opinion.
Independent, impartial decision-making is the cornerstone of judicial branch activities, which include the power of judicial review. Wisconsin courts can invalidate a state law that violates a constitutional provision or that was not enacted according to the process outlined in the constitution.
A corollary to this duty of judicial review is the obligation of courts to act differently from the more political government branches. An important way to distinguish adjudication from politics is for courts to adopt neutral principles in the cases before them.
Neutral principles consist of two elements: neutral content and equal applicability. A decision rests on neutral principles for reasons transcending the immediate result of the case. That decision then applies to all parties equally.
Neutrality underlies much constitutional doctrine. For example, procedural due process guarantees a hearing before a neutral tribunal, and equal protection of the law demands race- and gender-neutrality.
Adopting neutral principles is a way to seek the objectivity that should distinguish law as a discipline from politics. Neutrality is a guide for the courts, both in choosing the law and applying the law.
The idea that law should be based on neutral principles provides a powerful rebuttal to the idea, express or implied, that law is just another name for politics.
The strength of a court is as a legal institution, not as a political one. Viewing judges as quasi-legislators with predictable voting patterns obscures the proper role of a court to use the tools of the judicial workshop – a law’s text, structure, constitutional history and precedent – to interpret and apply the law.
A constant reminder of the proper role of the judiciary – to be even-handed, nonpartisan legal technicians interpreting and applying, not making, the law – provides an important touchstone for Wisconsin’s courts. It does the same for discussion about them. There is a distinction between healthy debate and a court and its work seen in terms of partisan politics.
A court’s authority encompasses power and neutrality. Lady Justice may hold a sword, but her scales and blindfold are just as important to who she is.

Beth Hanan of Gass Weber Mullins LLC in Milwaukee, Wisconsin, recently obtained reversal of a $1.4 million judgment against a security provider that was premised on the misconduct of one of its security officers. The defense team convinced the Wisconsin Court of Appeals that the company was not negligent as a matter of law because it had no duty to prevent its employee, a security guard at a manufacturing facility, from downloading employee badge photos onto a flash drive, and then taking them home and using them inappropriately, including posting them to websites.
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