By Dr. Ken Broda Bahm:
Within the last week, I have conducted two mock trials on cases that are strongly susceptible to hindsight. In both defense cases, once you know the outcome, it is very easy to see past events or conditions as big red flags predicting that outcome. But, the defense was that, without knowing what would happen later, a reasonably prudent person would not have seen a problem. In both cases, the defense attorney naturally argued that “We might have 20/20 hindsight now, but your job as jurors is to base your evaluation on what was known at the time.” Did it work? Not really. Once jurors began deliberating, it became clear that jurors couldn’t avoid hindsight or didn’t want to, and pointed again and again at the known outcome as a reason why the problem was not just foreseeable, but clear, obvious, and an “accident waiting to happen.” When I asked in the final interviews whether jurors were troubled by this apparent use of hindsight, the answer was no. As one juror shared, “I don’t know if it is appropriate or not…but it is inevitable.”
Awareness, it turns out, is not the cure. Merely telling jurors that a certain style of thinking is hindsight does not cause them to avoid that style of thinking. For many, I believe hindsight is natural and serves a purpose. We learn based on outcomes and use that knowledge to decide what was reasonable or unreasonable in the past. Generations used to put newborns to sleep lying on their stomachs, but they were wrong. And the legal distinction of “reasonable, but wrong” isn’t particularly compelling to jurors. Some of the jurors I interviewed felt that it is a good thing to use hindsight because that is also called “learning your lesson.” Think about the history of child car-seat design: Learning new things and using that knowledge as the basis for responsibility, has resulted in a continuing improvement in the technology. Hindsight works. That said, it often creates a burden for defendants that is unfairly high and, in legal terms, “not reasonable.” In this post I’ll consider some ways of handling hindsight that go beyond just telling jurors that it exists.
Teach them What It Means
Lawyers can just say the word “hindsight” and know what they are talking about, but jurors don’t always get the point. Their first reaction might be, “Why on earth wouldn’t we look at outcomes?” and miss the part about inappropriately transferring present knowledge into the past. When explaining it, I think the old chestnut of “Monday Morning Quarterbacking” still works. Even though it is a cliché, or perhaps because it is a cliché, it is a quick way to explain the problem:
Let’s say in the last five seconds of the football game, your hometown quarterback calls an unusual play. If the team scores, we’ll call it a genius move. If the team doesn’t, we’ll call it a disastrous choice. Same circumstances, same decision, but our assessment of that decision changes based only on the known outcome. That’s hindsight.
Don’t Rely on Awareness Alone
Remember, however, that notice alone is not a cure. Many jurors realize that they’re using hindsight and feel that they’re justified in doing so. After all, if their team scores, that is good, and if they don’t, that’s bad, right? The explanation needs to focus on why hindsight is inappropriate in the particular context of the courtroom.
In my football example, the scoreboard is going to determine whether that was a wise call for the quarterback or not. That’s the way it works in football. But in this courtroom, your job is to evaluate in a very different way. It is as if we go to the moment the quarterback makes that call, and then we stop the game clock, freeze the action on the field, and decide right then and there, before the hike, whether the strategy is reasonable or unreasonable. That is what the law is asking you to do in this case: Judge reasonability based on what was known at the time, not based on outcome.
Encourage the Jury to Police Itself
Knowing that hindsight is still likely to rear its head in deliberations, tell jurors what to do when it does. This is a good task in closing argument, which I’ve always thought of as the right time to arm your potential supporters with ways to shut down your detractors.
We have talked about hindsight, but you might expect that once the deliberations start, someone is going to start engaging in it. It is only natural. Someone will say, in effect, that “These prior decisions were unreasonable because just look at what happened.” When that comes up, it will be your responsibility to say, “Wait, that’s hindsight and that is not how the law is asking us to evaluate.” Ask them the question, “Without knowing the outcomes, was that decision reasonable or not?”
To Some Extent, Embrace Retrospective Knowledge
While there are ways of minimizing hindsight, my juror interviews from the past week remind me that at some point, it is inevitable. It is hard for anyone to have enough self-awareness and discipline to completely escape it. And some jurors want to use hindsight and will use it despite your best efforts. So, one strategy is to, on some level, embrace that retrospective knowledge and let jurors know that you’re glad to know what you’ve learned. That doesn’t mean admitting liability but, instead, it can mean including messages like,
“We wish we had been able to know.”
Or, “We are glad we now know.”
It can be dicey to get into subsequent remedial measures, but particularly in cases involving a clear and significant injury, jurors do want to know that the defendant gets it. Even where they don’t blame the defendant, they might still want to see a defendant who takes it seriously, and even learns from it.
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