Doubting and Believing in Motion draws upon the theoretical framework developed by Peter Elbow (the Doubting or Believing binary) and expounded upon by Jean, Sue, and Mark Weisberg (the Doubting/Believing Scale), and empowers practitioners to apply the Doubting/Believing Scale in real-time. It encourages the lawyer to practice nonjudgment, to seek out more information, and to observe their responses to new facts as their doubt and belief change in real-time.
As detailed on the Doubting and Believing at Rest page, the Doubting/Believing Scale invites lawyers seriously to investigate, interrogate and reflect upon the reasons why they view their clients with credibility or skepticism. Because lawyers are unaccustomed to looking closely at our own patterns of doubting and believing, we may often treat our doubt, belief, and their client’s credibility as a fixed and objective reality in the world—rather than complex, dynamic, and circumstantial.
The Doubting/Believing Scale asks lawyers to instead rank their doubt/belief regarding an encounter with their client—or any experience more broadly—from 0 (pure doubt) to 100 (pure belief). It keeps the lawyer aware that perceptions of credibility are not simply an absolute yes-or-no, but rather a point or range along a much wider spectrum. It invites lawyers to articulate why they have chosen a particular point on the scale. It also aims to interrogate and deconstruct surface assumptions and implicit biases that contribute to perceptions of doubt and belief.
This section takes the Doubting/Believing spectrum to the next level. The practice of Doubting and Believing in Motion rejects the idea that doubt and belief, in any context, is a fixed, unchanging, and unmovable part of the lawyer’s mind. Facts can and should move a lawyer along the line. By acknowledging that, at all times, we can observe and think introspectively about the multitude of experiences, data, and behaviors that inform our judgment. Doubting and Believing in Motion empowers us to track our subconscious reactions as new information surfaces. Each new piece of information can affect our perceptions, and the scale helps us track how new facts may increase belief, decrease belief, or keep it constant.
For example, consider one of Jean’s initial interactions with an asylum client. She remembers vividly a West African asylum client who mentioned, as part of her narrative of captivity, an incident of cannibalism by her captors. Jean’s immediate reaction was doubt and denial—surely this was outlandish and impossible. She began to doubt the credibility of her client’s story, both with regards to this particular detail, and to her reliability as a whole. At that point she would have located herself on at 5 or below on the Doubting and Believing Scale: at pure doubt. But thinking about her location on the Doubting/Believing Scale led Jean to ask her students, however dubiously, to seek out additional information to verify her client’s narrative. “What data or facts would change my position on the Doubting and Believing Scale?” Later that week, clinic students showed Jean U.S. government reports that clearly and extensively documented cannibalism in the very context described by the client. Those documents moved Jean across the spectrum to 95 or above, near pure belief. In retrospect, Jean is sure that her doubt was a shield, protecting her from a world of violence she was not ready to confront. Left unchecked, that visceral doubt would certainly have jeopardized quality representation for the client, poisoned the lawyer-client relationship, and compounded the client’s isolation and trauma. Doubting and Believing in Motion, thus, allowed Jean to pinpoint what data would move her, to acknowledge the source of her skepticism, to withhold final judgment, and to seek out verifying information, all of which improved the quality of her client’s legal representation.
The practice of Doubting and Believing in Motion also has direct application to concrete legal adjudicators. For one, the Doubting/Believing Scale can help lawyers think about the thought processes of judges and other decisionmakers as they acquire new evidence and eventually make determinations based on preexisting legal standards (e.g., probable cause, reasonable suspicion, preponderance, clear and convincing, and beyond a reasonable doubt). Moreover, the practice of Doubting and Believing in Motion in a group may also be helpful for thinking about how individual members of a jury might respond differently to new information.
With that in mind, Doubting and Believing in Motion, ultimately, offers advocates ways both to reflect more on their own patterns of doubting and believing as they currently manifest in daily work, and also to make conscious adjustments of those patterns of doubting and believing in service of better self-understanding and greater transparency with collaborators and clients. It also empowers lawyers to adopt the perspective of a third party and contemplate the ways in which new information may influence their perceptions of doubt/belief. At the end of the day, Doubting and Believing in Motion enables us to consciously identify in the foreground what has often been hidden: the ways in which we credit and discount the thousands of experiences and inputs, and the ways in which bias may contribute to those crediting or discounting conclusions.
Exercise: Doubting and Believing in Motion
To practice Doubting and Believing in Motion, we often use the following exercise, in which lawyers can track their level of doubt/belief on a Doubting/Believing Scale in real time, and sometimes in a group, as they are presented with a fact hypothetical scenario.
Before the activity begins, place tape on the ground to create a Doubting/Believing Scale. Inform students when facing the scale, the right end of the tape represents 0 (pure doubt) and the left end represents 100 (pure belief). As new information surfaces iteratively, students will walk between different points on the Scale to reflect changes in their levels of doubt/belief.
Having the group do this exercise together allows the class to see how each of them moves or doesn’t, and to note trends as the exercise proceeds. When an unexpected movement occurs (for example, someone makes a significant move along the Scale, or several people move in different directions when new information surfaces), this can be a wonderful opportunity to ask students to ask each person to explain their reasoning. Likely, each will have a logical yet somewhat different explanation, demonstrating how different lawyers may react differently to the same fact.
On the other hand, some students may be uncomfortable with sharing their own processes of doubt/belief in a group setting. With this in mind, you may also choose to run the exercise with students seated. Rather than having them move physically along the Scale, you can instead have them document their movements in writing. This allows students to think introspectively about changes in their doubt/belief when confronted with the set of facts. It also helps avoid the temptation of looking to classmates for guidance on how they “should” move (i.e. group-think). To facilitate this individual exercise, a sample Doubting and Believing in Motion handout is available, which students can use to track their own movements on the Scale. Then, after they have recorded their movements on paper—and only if they feel comfortable doing so—you can work in the kinesthetic and shared learning detailed above by having students stand up and reenact their movements on the Doubting/Believing Scale tape.
In the several dozen times that Jean has facilitated this exercise, it has been a lively, fascinating exercise, regularly pointed to by students as an “aha” moment in their learning.
- Students will learn how to apply the Doubting/Believing Scale in real time.
- Students will practice non-judgment, incorporating new information into their preexisting knowledge of the case and weighing such evidence accordingly.
- Students will think critically about why, how, and to what extent new information affects their overall sense of doubt/belief about a particular position.
- Students will consider when they might be able to draw upon Doubting and Believing in Motion to gain insight into future clinic cases, and perhaps even in daily life.
You may find that your clinic’s unique learning objectives are best achieved by using a hypothetical case associated with your clinic’s core issue areas; drawing on the factual context of a case your clinic has dealt with in the past; or tweaking the jurisdiction, date, legal standard, and other discrete facts of the fact hypothetical below based on where your program is taught. Alternatively, you are welcome to use one of the fact hypotheticals we’ve provided below.
Fact Hypothetical #1
This exercise appears as part of this Powerpoint, which demonstrates all three forms of Doubting and Believing along with other exercises.
For this exercise, have your students take on the persona of a judge. They are free to use their own thoughts and opinions, take on the persona of a judge they know, or imagine a judge like or unlike themselves. An alternative version of this exercise may involve having your students adopt the perspective of different parties to the suit, allowing them to see the ways in which one’s “side” in a legal dispute affects perceptions of doubt and belief. Before starting this exercise with your students, we encourage you to adjust the dates of the hypothetical to end on the date of your class session (the following dates were used in a class session on October 19, 2018).
First, read your students the following hypothetical:
You are a judge in the Superior Court for Juvenile Matters in Hartford, CT. On today’s docket is a contested hearing regarding a 1-month old baby, Alexa Davis, whom the Department of Children and Families (DCF) took into custody two weeks ago and obtained an ex parte Order of Temporary Custody (OTC) from one of the other judges in your courthouse. A week ago, the parents, Alexander Davis and Tonya Lewis were assigned separate attorneys who each demanded the current hearing to request Alexa’s immediate return to their care. The legal standard requires the court to determine whether the child would be in imminent danger from her surroundings if returned. So, in their capacity as the judicial decisionmaker, have your students ask themselves the following question: “If I return the child to her parents, will she be in imminent danger from her surroundings?”
Before proceeding with specific facts in the case, have your students situate themselves at a point on the Doubting/Believing Scale based on what they’ve just been told. You can then ask students to explain why they chose their particular location on Scale and to think about how their choice of location might influence their subsequent movements. You may also ask them how the prior decision of one of their judicial colleagues to grant the ex parte OTC influences their initial choice of location on the Doubting/Believing Scale.
(ONE OPTION: Second, read your students the following summary paragraph from DCF’s motion for an ex parte Order of Temporary Custody:
In light of the parents’ young ages, their history of substance abuse, their history of domestic violence, the mother’s suicidal ideation, the father’s limited mental capacities, their residence with a maternal aunt who has an extensive history with DCF, their residence in a home where many adults are seen coming and going, lack of other appropriate family resources, and the mother’s failure to comply with in-home services, the child would be in imminent danger from her surroundings if left with her parents.
Based on this information, have your students make note of their new location on the Doubting/Believing Scale.
Jean often does this step, but then asks people to do the third step as if they had not done the second step. This demonstrates how DCF’s summary of their claim sounds much more grave than the actual facts behind it.)
Third, read your students the following bullet points, one at a time. You can also post these on power point slides as you read them to aid student memory. This can be offered as the evidence adduced at trial, or the more detailed factual summary. Have students make note of their movement on the Doubting and Believing Scale after each new piece of information.
- Alexa Davis, child, currently three weeks old
- Tonya Lewis, Alexa’s mother
- Alexander Davis, Alexa’s father
- Juanita Rivera, Alexa’s maternal great-aunt
(NOTE: while students often report that the names are confusing, Jean and Sue have generally resisted the urge to use “Mom” and “Dad” as commonly used in the local courthouses; our clients have reported this practice to be unnerving and disrespectful.)
During trial they learn the following:
- Alexa was born on September 26, 2018, after a normal labor, and was described by nursing staff as a healthy, robust baby.
- Until a week ago, Alexa lived with her mother, Tonya Lewis (age 19), and her father, Alexander Davis (age 19), at the home of her maternal aunt, Juanita Rivera, in downtown Hartford.
- Ms. Rivera supports the family and works as a certified nurse assistant at a nursing home in downtown Hartford. Alexa’s parents, her maternal great-aunt, and her relatives are all African-American.
- Both parents use recreational marijuana and have tested positive for its use. Ms. Lewis stated that she used marijuana twice a month. Mr. Davis said he used it once a week.
- Shortly before the birth, Ms. Lewis appeared to the hospital staff to be very depressed and behaving erratically, and she stated that she “didn’t know if life was worth living.” She said that she had felt this way twice before in the past year. A nurse noted in the hospital files that she appeared to show signs of possible manic depression. Ms. Lewis was provided a referral to a local mental health provider for an appointment a week later, but she did not keep the appointment.
- Immediately following Alexa’s birth, baby Alexa thrived during their brief hospital stay. Ms. Lewis seemed in good spirits. Mr. Davis was present at the hospital and was reported to be excited about Alexa’s birth.
- On September 28, 2018, Ms. Lewis, Mr. Davis, and Alexa went home to live at Ms. Rivera’s home in downtown Hartford. Ms. Rivera’s three adult children, in addition to two of Ms. Lewis’s younger siblings, live there as well.
- Ms. Rivera took care of Ms. Lewis and her siblings when they were younger. Ms. Rivera had past open cases with DCF for more than five years, on neglect grounds. At one point, the children she cared for stayed in foster care for several months. DCF closed its neglect case against Ms. Rivera in early 2007.
- At DCF’s insistence, a family preservation service called IFP was assigned to Alexa’s family. They visited the house three times per week, to discuss parenting and substance abuse issues with Ms. Lewis.
- A DCF worker reported that, on first meeting, Mr. Davis seemed “limited.” He has collected SSI since birth. He graduated from high school in Virginia last year, and moved to Hartford to live with extended family. He has known Ms. Lewis for about a year. During Alexa’s stay at home, DCF workers noted that he often cared for the baby; one stated that Mr. Davis appeared to have “no limitations.”
- On October 6, 2018, the IFP caseworker reported to DCF staff that the parents had had a “very loud” argument. Ms. Lewis ordered Mr. Davis to leave the house and he left that same day. He returned to Ms. Rivera’s residence the next day.
- On October 8, 2018, Ms. Lewis went to the Emergency Room, telling the reception desk that she felt very depressed and was thinking of hurting herself. Alexandra remained at home with her great-aunt and father. The ER gave Ms. Lewis an appointment for a community psychiatric clinic on October 9, 2018.
- The IFP caseworkers reported to DCF that Ms. Lewis was generally cooperative. They reported that Alexandra was happy and appeared to be well-cared for. They also noted that there were many adults, family and non-relatives, coming in and out of the home at all hours of the day. On at least one occasion, one worker observed “three or more unidentified African American males loitering in a bedroom.”
- On October 15, 2018, the IFP worker asked Ms. Rivera if marijuana was being used in the house. Ms. Rivera asked the worker to leave and not to return.
- On October 16, 2018, the IFP worker asked Ms. Lewis over the phone if she would work with them in places other than Ms. Rivera’s home. Ms. Lewis said that she would think about it, and meet the IFP worker in-person tomorrow to discuss.
- On October 17, 2018, Ms. Lewis did not appear at the pre-arranged time and place.
- On October 18, 2018, DCF took Alexa into its custody on a 96-hour hold. Then, three days later, DCF requested ex parte and was granted an Order of Temporary Custody for Alexa.
Potential Discussion Questions:
Note: You may prefer to raise some of these discussion questions during the exercise rather than after it. We have placed them all below to avoid cluttering the fact hypothetical.
Where did you start on the Doubting/Believing Scale and where did you end? Are the two locations different? How great or small was your movement on the scale. If you moved what caused the movement? These questions gives students the opportunity to think about Doubting and Believing in Motion in comparison with their earlier exposure to Doubting and Believing at Rest.
Did the fact that another judge had previously granted the ex parte OTC influence you in any one direction at the very start? Why or why not? This question offers insight into the ways in which students weigh preexisting legal authority and encourages students to think critically about why they chose a given starting point on the Scale.
Were there any facts that you learned during trial that moved you along the D&B Scale in ways you did not expect? Why or why not? This question gives students the chance to examine their own step-by-step movements along the Scale, and to explain the logic behind their own movements, especially when their movements differ from their fellow classmates’. This can also be a useful time to talk about how belief and doubt are influenced by the source of the information. “Facts” presented by trusted sources are more likely to be believed. We each may have different ideas about who should be trusted. For example, some students are highly suspicious of child welfare authorities and therefore may reject evidence provided by them while others may see child welfare authorities as disinterested parties and therefore more reliable.
Were there times when you stayed in the same place on the Scale? What might cause you to be less responsive to new information? This question prompts students to think about why some information might be unpersuasive and to question why some new information may have little to no effect on doubt and belief. This also allows you to introduce the concept of confirmation bias, a tendency to search for confirming evidence to support belief and first conclusions and to ignore evidence that challenges our beliefs.
Did the degree to which you moved after each new piece of information narrow over time as you accumulated a body of knowledge about the case, or did you move more freely along the Scale in response to new information? Why or why not? This question raises the following themes: the outsized impact of initial impressions, the ongoing challenge of practicing nonjudgment and parallel universe thinking (Habit 3), and the prevalence of confirmation bias.
Did your ability or inability to relate directly to Alexa’s family influence your perceptions of Doubt and Belief? Why or why not? This question calls on students to think about their own lived experiences and the way that it may bias perceptions of doubt and belief. This question harkens back to the similarities and differences between lawyer and client contemplated in Habit One.
Were there any facts that you felt particularly strongly about (e.g., the state’s default duty is to reunite families or protect children, the parents’ marijuana use, unrelated individuals loitering around the house, the autonomy of individuals with disabilities)? This question asks students to think about the most compelling evidence and their own perceptions of right and wrong. It can also be helpful for thinking about how to best frame evidence before a decisionmaker.
What number or range on the Doubting/Believing Scale would you need to end at to conclude that Alexa “is in imminent danger from her surroundings if returned” to her parents? (Note: In Connecticut, judges apply the preponderance of the evidence standard to this inquiry—i.e., more than 50 percent likely.) This question prompts students to consider the precise legal standard at issue and its relationship to the Scale. Perceptions regarding this standard may differ between decisionmakers (e.g., different judges in the same court) and may diverge from the student’s.
Were you at all influenced to move on the Doubting/Believing Scale based on how your classmates moved? When might this be helpful? When should this be avoided? This question forces students to interrogate the general desire to conform to social expectations and the prevalence of groupthink. It asks students to think about how divergence from convention may prompt useful inquiries into the rationale behind one’s own thinking and may offer a springboard into group discussion to build informed consensus among clinic members.
Do you already practice a version of Doubting and Believing in Motion in real-life interactions? How might subconsciously applying Doubting and Believing in Motion be beneficial or harmful? How can we use Doubting and Believing in Motion more methodically? This question encourages students to observe the ways in which they may already be subconsciously applying Doubting and Believing in Motion to daily interactions and the acquisition of new information. It also asks them to scrutinize the potential upsides and risks of heuristic use of doubting and believing.
Could you imagine applying Doubting and Believing in Motion to help you identify new information to advance your client’s case? Would you feel comfortable applying Doubting and Believing in Motion in a future clinic case? This question motivates students to move their thinking beyond doubting and belief as an abstract concept and asks them to consider its practical relevance for client representation—both in their interactions with their clients and from the perspective of case strategy.
To what extent did you apply methodological doubt and belief? If not, how would your responses change if you had been actively practicing methodological doubt and belief? This question prods students to think about the role methodological doubt and belief may play in informing their movements along the Doubting/Believing Scale. (Note, we often use this same hypothetical to teach methodological doubt and belief.)
This hypothetical is also useful for talking about how doubt and belief are shaped by bias, assumptions and prior experiences. For example, students’ assessments are often based on their assumptions about mental illness in general and depression specifically. Students may identify stereotypical thinking by case workers who combine race, poverty, drugs and young parents to see problems vs seeing the possible strengths of the parents and other family members in this situation.
We sometimes use this same hypothetical to teach challenging assumptions more generally. We will teach “parallel universe thinking” asking the group to brainstorm about the implications of one fact in particular: “On at least one occasion, one worker observed ‘three or more unidentified African American males loitering in a bedroom.’” This hypothetical also lends itself to “especially when and except when” thinking.
Fact Hypothetical #2
First, read your students the following hypothetical:
- You are an asylum officer in San Francisco, CA: “Does JYC have a well-founded persecution on the basis of his religion if he is returned to China?”
Before proceeding with specific facts in the case, have your students situate themselves at a point on the Doubting/Believing Scale based on what they’ve just been told. You can then ask students to explain why they chose their particular location on Scale and to think about how their choice of location might influence their subsequent movements.
Second, have your students read the following summary paragraph, provided by JYC’s pro bono counsel:
- JYC, a Chinese Christian, was arrested and detained for 48 hours after visiting a church for the first time. He was beaten and mistreated in jail and interrogated about the leader of the home church. He then fled China by plane and arrived in the United States where he was detained by immigration authorities after requesting asylum.
Based on this information, have your students make note of their new location on the Doubting/Believing Scale.
Third, read your students the following bullet points, one at a time. Have students make note of their movement on the Doubting and Believing Scale after each new piece of information.
- JYC said he was arrested in China on January 1, 2005 and held for 2 days.
- JYC’s sister said she saw him on January 1, and had been told by their father that JYC had been held for 20 hours and released several days before.
- JYC then said his sister was mistaken, and that he had not gone directly home the day of his release, as he had testified before, but rather went to his “god-sister’s” home and then his own. You personally note the “rapid manner” of JYC’s testimony.
- JYC said he had a home church meeting at their house on April 10, 2005, which his sister attended.
- JYC’s sister said she was home for less than 15 minutes that day and “could not confirm” that any type of religious activity took place.
- When he arrived at the San Francisco International Airport, JYC said his passport—given to him by smugglers and destroyed during the flight—was green and bore someone else’s name.
- At his IJ hearing, JYC testified that his passport was black or grey and bore his name.
- When questioned at the airport, JYC could not identify the Bible as the authoritative book of Christian teachings.
- At his hearing, JYC testified that he had been given a Bible by his friend in China and was told to read it.
After this activity, you may choose to share with your students that this hypothetical was modeled after a real case. In that case, the BIA upheld the IJ’s finding that JYC’s testimony contained inconsistencies, problems with demeanor, and implausibilities, as well as lack of corroborating evidence. Under the “totality of the circumstances” standard, JYC’s entire account was found incredible. He was subsequently removed from America and returned to China.