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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

June 3, 2010

Peer Review

Some of the fondest memories I have of graduate school were of the times that I spent with my fellow graduate students in our cramped office, bantering back and forth as we critiqued one another’s ideas, at times someone standing to write an equation or outline a train of thought on a blackboard. We were instilled with the idea that scientific inquiry mandated a responsibility to point out faulty thinking to our peers, and to accept our peers pointing out our faulty thinking. The criticisms required thoughtful responses, not ad hominem arguments, nor merely standing on dogmatic platitudes, and certainly not sitting quietly and not participating. Ultimately, I believe this attitude best reflects what “peer review” is all about.

One of the criteria for being an “evidence-based” practice is that the research had been “peer-reviewed”. “Peer-reviewed” means that the research has been reviewed by individuals not associated with the research but with expertise in the research topic area, usually before the research is published. The purpose of peer-review of research is to catch mistakes made in the research protocol, or the conclusions drawn from the research. Peer review provides another perspective on the research and the conclusions drawn from the research.

We have appellate review in the court system. A miniscule percentage of my decisions are ever reviewed by an appellate court. (Hopefully, mostly because the litigants thought the decisions were correct, but I am sure the cost of appealing a decision discourages much appellate review.) A small percentage of appellate cases are ever reviewed by the Wisconsin Supreme Court. And even if one of my decisions is reviewed by an appellate court, the scope of the review is often limited. Many of my decisions, as a trial court judge, are reviewed under the erroneous exercise of discretion standard. As the appellate courts point out, they may not have made the decision that was made, but it was within the realm of reason.

Because so few of my decisions are ever reviewed through appellate review, I rely on counsel for the parties for peer review. I rely upon the adversary system to help me make the correct decisions. At times a lawyer, during argument, and after I interjected a hypothetical assertion will say, “Your honor, with all due respect and with no offense intended, I think you might be wrong.”

I tell them “You will never offend me by telling me I am wrong. That’s your job. I want to hear why you think I am wrong. Maybe I am wrong. Educate me.” I then listen to the other side. I enjoy when the light comes on and I can more clearly see the issue in front of me.(Of course, ultimately I issue the decision and inform the parties which side I believe was right and wrong and why.)

Ultimately, I believe the power of peer-review lies with the appreciation of the responsibility of constructive criticism, and the appreciation of being responsibly criticized. The criticism helps identify cognitive errors that are part of the human psychology and that often lead to erroneous decisions. I believe anything we can do to ensure the best decisions possible, strengthens the legal system.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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