Principles and Challenges

Abstract

Sound judgment is a universally admired but curiously elusive skill. Attorneys, judges, and clients extol the virtues of sound judgment, but they hesitate when asked to define it, describe how it is developed, and identify who consistently displays it. 1 The popular quip that "good judgment comes from experience, and experience comes from bad judgment" reflects our confusion and unease about the origins, elements, and development of sound judgment. 2 The quip is neither instructive nor genuinely funny because we all know people whose judgment did not improve with experience, and, in law practices and fiduciary relationships, the consequences of bad judgment are far too severe to allow haphazard, trial-and-error training. The Carnegie Foundation for the Advancement of Teaching, in fact, has expressed concern that the development of professional judgment in law has been "abandoned to chance" and "the vagaries of curricular accident." 3 The development of sound judgment eludes many people because they cannot conceptualize it as a body of knowledge and a set of practices to be applied prospectively to multiple problems. Instead, they regard sound judgment as a skill that can only be understood retrospectively and singularly. Unless a decision has already resulted in an advantageous outcome, they cannot discern the attitudes, elements, and processes that demarcate sound judgment. In their view, sound judgment is defined by outcomes and has no characteristics independent of those outcomes. This view reflects a tautology -sound judgment means a good outcome and a good outcome means sound judgment -that hinders a thoughtful analysis of the perspectives, habits, and methods that promote sound judgment. Good outcomes, in reality, are not always preceded by sound judgment, and sound judgment does not invariably result in good outcomes. 4 And when we focus on a specific decision that apparently produced an advantageous result in a single event, we fail to identify principles and practices that have a broader application in the exercise of judgment. By concentrating on single episodes of sound judgment, we contribute to decision-making folklore but fail to build a discipline of decision making.