“Decision fatigue”: Its implications for analyzing issues on appeal

A controversial theory from psychology, decision fatigue carries unconventional implications for brief writing. The theory holds that the act of choosing and other acts of self-control draw on a limited store of energy, which you can only fully replenish with a night’s sleep, although drinking or eating sugar brings immediate relief. When you run out of decision-making juice, you avoid choosing or you choose impulsively, and you are more apt to lose self-control, whether by raging at someone, failing to persevere at an unpleasant task, or (especially) over-eating. While people are depleted by too many choices and although people should economize on their decision-making, avoiding choice isn’t always the answer, since unwanted tasks also deplete the energy store devoted to self-control.

Decision fatigue explains some experiences of writers. The writing process is decision laden, which probably explains the paucity of words—estimated as low as 500—a writer can set down in good order on any given day. The replenishment sugar provides explains why writers tend to get fat—if they do—although I only get scrawnier.

These experiences were never terribly hard to explain, but you probably wouldn’t expect the following, which exposes a source of judicial bias. In an Israeli study, researchers found that decisions were favorable to candidates for parole in 70% of cases heard in the early morning, but 10% of cases heard in the late afternoon. Research reports emphasize that the judges react to depletion by opting for the default, but for lawyers’ purposes, the most important finding may be that the court’s default option is to deny a petition.

While the study dealt with only a single venue, it suggests that depleting the judge’s willpower disadvantages the petitioner—a result providing writers of appellants’ briefs with another reason to avoid issue proliferation—but the respondent may benefit from the judge's depletion. The effect is probably not as strong as in the Israeli parole hearings, where the risk of granting parole was much greater than of denying it; whereas in an appellate case, reversal is only moderately more risky than affirmance. The difference is enough to make affirmance the default alternative, experienced as involving less choice, mainly because the reversing court has to state publicly that colleagues erred.

If depleting the judge’s supply of willpower benefits respondents, they may help themselves by using a slightly subversive strategy. The respondent should try to increase the judge’s decisional load yet must also avoid confusing or antagonizing the judge by originating needless complexity. The respondent can sometimes achieve these often-opposed goals jointly by repackaging the issues presented on appeal. Knowing that that decision fatigue benefits respondents should reduce their worry that restating the issues to simplify their briefs complexifies decision-making by the courts, which, depletingly, must now consider competing issue sets.

The work on decision fatigue, undertaken primarily by Roy F. Baumeister and his colleagues, has been criticized by social psychologist Carol Dweck, who found that believing you have an unlimited supply of willpower can enable acting as if you have it abundantly. Although popular coverage of Dweck’s research has submerged the original findings, the Dweck research bears little practical significance. People can eke out painfully higher levels of willpower, but they don’t ordinarily want to.