Washington Lawyer - November/December 2024 - 28

ON FURTHER REVIEW
Seeing What Isn't There
By Lloyd Liu
J
udge Ricardo Urbina, who
passed away in June, once
described his approach to
judging this way: " I try to see
where my biases and prejudices
that day are hiding. "
Biases are, by nature, hidden from us, and the
hardest thing to see is what is not in front of us.
How should we think about this? What rules of
thumb might help?
Murad Hussain, a partner at Arnold & Porter
Kaye Scholer LLP, has focused on questions like
these for some time. A seasoned white-collar
trial attorney, he has regularly represented life
sciences innovators, health care providers, and
cross-border organizations facing criminal prosecution
and government investigations. Before
pursuing law, he studied social psychology,
and much of what he learned about human
behavior and decision-making still informs his
defense practice today.
Hussain often speaks at conferences and in law
schools about his perspectives on how confirmation
bias can taint government investigations.1
" Whether
you're a defense attorney or a
prosecutor or [an] investigator, the legal system
gives us all a role to play that shapes how we
seek out and interpret the facts for our cases, "
he says. " The trick is making sure that our roles
don't blind us to new information that might undercut
our theory of the case or paint the facts
that we already know in a whole new light. "
But as Hussain points out, not all bias is subjective
or negative. " Sometimes the bias is the result
of limited information being available. But
it's still important to ask why that information
might be limited in the first place, " he says.
As an example, consider a judge overseeing
a criminal trial who tasks a law clerk with re28
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* NOVEMBER/DECEMBER 2024
searching an issue for a pending defense motion
in limine that has the potential to eviscerate
the prosecution's case. The law clerk likely
begins researching appellate decisions; after
all, those are what bind the trial court. The law
clerk sifts through these decisions and finds
that they all reject the criminal defendant's arguments
about the same general legal principles
presented by the pending motion, even
though none of them consider the precise fact
pattern facing the judge. Ultimately, the clerk
recommends that the judge deny the defendant's
pending motion.
" The easiest story to tell about your data points
might not be the right one, " Hussain says. " So,
[in] the law clerk example, sure it's possible that
all the appellate cases seem to go one way because
the legal principle is inherently stacked
against defendants. But it's also possible that
it's due to structural bias in how the data
points were collected. "
This is a potential example of " file drawer " bias
or publication bias, a concept popularized by
renowned psychologist Robert Rosenthal, who
taught a behavioral research course that Hussain
took during his college days.2
If you are a
researcher testing a hypothesis and you find
that your study is not supported by the evidence,
then you may be less likely to seek publication,
either because you conclude that you
made a mistake somewhere along the way
or because you don't think it's worth reading
about. As a result, your study sits in a file drawer,
gathering dust.
" There's a structural version of publication bias
that confounds criminal case law research, "
Hussain explains. " During a criminal trial, if the
judge rules from the bench and grants a defense
motion to exclude some key evidence,
chances are you'll never see that ruling officially
published anywhere. If the jury acquits the defendant,
then double jeopardy attaches and
there's no appeal and no appellate opinion.
And if the jury convicts, then even if the defendant
appeals, [they] won't be asking the appeals
court to review that successful evidentiary
motion. "
Part of what Hussain suggests is being mindful
of not only what information is not in front of
you, but also how information that's in front of
you got there. " If you're a newer lawyer, whether
a ... defense attorney or prosecutor, when you
look at circuit cases, most of what you'll see are
convictions. You've got to read those decisions
carefully to see what facts aren't there, or what
issues weren't presented to the appeals court, or
which issues were never raised in the trial court,
so you don't tell the wrong story based on
what's on the page, " he says. " And for defense
attorneys especially, they might also have to
wade through trial dockets for unpublished
orders and briefing and hearing transcripts for
the diamonds in the rough that ultimately won
the day. "
Once you've identified what you're missing, the
next step is determining how to use that data to
help tell a story. " Sometimes what you've got in
the discovery file or the call logs or the bank records
are just data points or episodes that leave
out the story's most compelling elements. When
those parts of the narrative aren't obvious, you'll
have to dig deep to make sure they get told. "
Lloyd Liu is a partner at BLL LLP where he focuses
on white-collar defense, government investigations,
and complex civil litigation.
NOTES
1 See, e.g., Richard A. Posner, How Judges Think
(2008) (describing confirmation bias as " the welldocumented
tendency, once one has made up
one's mind, to search harder for evidence that
confirms rather than contradicts one's initial
judgment " (citing, inter alia, Ziva Kunda, " The
Case for Motivated Reasoning, " 108 Psychological
Bulletin 480 (1990)).
2 E.g., Robert Rosenthal, " The 'File Drawer Problem'
and Tolerance for Null Results, " 86 Psychological
Bulletin 638 (1979).
Washington Lawyer - November/December 2024

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