Debias on Hindsight

Defendants in civil cases are often plagued by the reality that the “should have,” “could have,” and “would have,” aspects of the reasonable care all exist in the realm of hindsight. The tendency to believe that negative consequences are more knowable and preventable when viewed through the lens of a known outcome is a very human tendency, and hindsight bias is an exceedingly common factor in legal cases. The test that should have been run, the precaution that could have been spelled out, the design that would have worked better, all create a “creeping determinism” that recasts the past in light of present knowledge making the negative outcome seem more controllable and the defendant more negligent. So what do lawyers do about hindsight when they want to encourage jurors to view a situation based only on what was known at the time.? Most, I’ve found, will give the jurors something like a somber speech about evaluating football plays on the day after the final score is known. But as enshrined as the “Monday morning quarterback” speech is, it may not work that well. One reason for that is that jurors like to think they’re being rational about the assessment, and a known outcome seems relevant to the calculation. In other words, they might feel like they’re actually better quarterbacks on Monday morning.

A recent research study on hindsight bias takes a careful look at how it works, and even more importantly, how it can be countered. Cognitive researchers from Switzerland and Poland (Kneer & Skoczeń, 2023), conducted research on 2,043 U.S. participants, looking at several scenarios, including a strawberry farmer who either did or didn’t take flood precautions for workers’ lodging, and then either did or didn’t experience a rare flood that wasn’t predicted. When the flood occurred, of course, it becomes obvious that the owner should have protected the property, but when the flood didn’t happen, it is much less obvious. Knowledge of the concrete harm distorts our judgment, making the rare event seem more likely, or even inevitable, and making a punishment seem more appropriate. That is, in short, what the researchers found, but they also found a little more. “Although the hindsight bias is robust, pervasive and its consequences can be daunting” they conclude, “there are measures that can be taken.” In this post, I’ll take a look at what they found on four ways to address hindsight.

Simple Awareness 

The researchers didn’t directly test the step that lawyers take most often of simply telling the target audience that hindsight exists and they shouldn’t rely on it. However, even without directly testing it, the authors did report on other research as well as their own findings indicating that even when people see both scenarios side-by-side (e.g., the flood did happen for one farmer, and didn’t happen for the other), and even when they know that the only difference is the end result, that known outcome still influences their judgment and makes them more likely to punish. That suggests that awareness by itself may not work, and the football speech may not be enough on its own.

Probability Anchoring: Tell Them the Probability Before They Know the Outcome

The first solution that the researchers did test was to try to “anchor” the participants’ sense of probability by providing information on that risk before learning about the outcome. They discovered that this doesn’t turn out to be a quick fix: “Even with anchoring, outcome still has a medium-sized effect” on negligence and blame. In addition, for litigators, it isn’t a practical solution since jurors generally know the outcome at the very beginning of the case, since that is the reason why they’re in court.

Counterfactual Priming: Think About Alternative Outcomes

I have written before that inviting your jurors to think about what could have happened but didn’t happen can work in helping them reframe their thinking. The researchers found counterfactuals work to combat hindsight as well. “Asking people to imagine a counterfactual outcome strongly reduces the outcome effect on blame and punishment.” It doesn’t eradicate hindsight, they caution, but it does make the effect of a known outcome substantially smaller. So, if you jurors to think about the more likely scenario of the rare or unexpected event not occurring, it helps them see that outcome as less inevitable and less apt to justify punishment.

Probability Stabilizing: Give Expert Opinion on Actual Probabilities Before the Fact

The final solution the researchers looked at is what they call “probability stabilizing,” which means reducing uncertainty by having an expert quantify what the risk of a negative outcome actually was prior to the actions at issue in the case. For example, in the flood case, a meteorologist could put a number on the times that a flood would strike the strawberry farm in 100 or 1000 years, or a medical expert could quantify the percentage of times an operation ends up worsening the condition. Testing the inclusion of that information, the researchers note, “probability stablizing via expert testimony works: When there is an explicit specification of the flood’s likelihood at the context of action, people view objective probability identically across outcomes.” To help that expert quantify, it is also helpful to visualize risk (e.g., one red dot in a circle of one thousand blue dots to convey a 1/10th of 1 percent chance).

This research fits in with a recent focus on “debiasing,” or seeing cognitive biases not as immutable traits that can only be handled through something like jury selection, but seeing them as malleable states that can be made less salient and less active through certain messages. Hindsight is definitely a problem across a variety of cases, but as a litigator, you can address that through your trial message.