‘De-Normalize’ Hindsight

When you’re analytically-minded, and have at least a little bit of training in logic and argument, then you might be tempted to think it is enough to name a logical fallacy or cognitive bias. After all, what rational audience would want to follow flawed reasoning? But just calling it out isn’t a reliable way to argue in most settings. Generally, you want to teach your audience to move away from the problem, and not just identify it. That approach applies to hindsight, maybe even applies particularly to hindsight. It’s not enough to counsel, “Focus only on what was known at the time” or “Don’t rely on hindsight.”

I have a recent experience that illustrates this. During a focus group this past week, I noted that several of our mock jurors were aware and unapologetic about using hindsight, despite the presenting attorney’s frequent pleas to the jurors to divorce themselves from it. They weren’t convinced that it wasn’t still useful to consider past acts in the light of present knowledge. The experience left me feeling there may be something unique about hindsight that might make jurors comfortable its using despite hearing about quarterbacks on Monday morning. In this post, I will take a look at why that may be the case with hindsight, and what the best messages should be against it.

Why Might Hindsight Seem Normal?

Despite it being a well-known problem with perception, I see jurors over and over again at least semi-consciously using hindsight. I think there may be a few reasons why.

Because It Feels Good to Use What We’ve Learned

You know when you’re watching a movie you’ve seen before and you already know the ending? That feeling gives you a little bit of power, particularly when watching with those who haven’t seen it. It can feel only logical to use the knowledge that comes from knowing the end of the story. So when the business adopts a strategy that we now know didn’t work, jurors can feel justified in criticizing that business for choosing what we now know to have been the wrong strategy.

Because We Should Have Assumed the Worst to Begin With

Even when a juror can center themselves on the past decision frozen in time, they can think that the decision-maker should have planned on the known result. Applying the adage to “hope for the best, but prepare for the worst,” jurors can fault a doctor who missed a diagnosis, for example, because we now know that the worst case actually happened, and therefore should have been in the center of the doctor’s attention.

Because What Matters Most is Next Time

The law presumes that jurors are focused on the situation of a specific plaintiff and resolving the dispute they’ve brought into court. But sometimes, jurors have a broader focus. The Reptile perspective, for example, plays on jurors’ tendency to frame themselves more in the role of protecting society rather than the role of deciding just a particular case. And if it’s about protecting society, then why not apply hindsight in hopes of promoting a safer outcome next time?

And What Can You Do to Make It Not Normal?

The rationales above are versions of what I’ve heard or intuited from mock jurors reacting to cases. They don’t logically justify hindsight, of course, particularly in the context of a civil claim where the point is to assign responsibility, and not to learn from the past or to protect those in the future. In response to the risk of that kind of normalized hindsight, I think there are a few steps in message development.

Frame It Narrowly 

The courtroom is a very specific setting for a very specific question. You aren’t here to decide what is best for society, or even what is best for the parties here. You are here to answer a very specific question posed to you by the law. And that question is, ‘Did my client act reasonably or unreasonably with the knowledge they had on September 14th, 2021?”

Focus on a Lack of Usefulness 

And it is quite normal to interpret the past in light of present knowledge — to use what we know now to inform our decisions on what someone should have done then. That is typical in our day-to-day thinking. But it isn’t appropriate in a courtroom. The problem with hindsight is that it just doesn’t answer the very specific question that the law is asking you to answer.

Focus on Harm

And beyond just answering the wrong question, a focus on present knowledge to evaluate past decisions actually harms the legal process. It harms that process by adding an ingredient that the decision makers simply did not have at the time. That pollutes your assessment and creates an unrealistic standard. So to answer the right question, in the most useful way, the best course is to restrict your focus to just what was known at the time.