We often hear directives to anticipate ever-present juror counter-factual thinking. It’s really tough (and sometimes impossible) to figure out all the imaginative directions jurors can go to come up with their own hypotheses as to what ‘really happened’. So we wonder—why don’t more litigators simply turn counter-factuals to their advantage?

Counter-factual thinking is the label used to describe what happens when we think about ‘what if’ or ‘if only’ alternatives to a regrettable situation. When jurors employ counter-factual thinking in response to litigation, they often think things like:

“If only she hadn’t driven a different way to work that day…”

“What if he had sought out a third opinion?”

“If only they hadn’t decided to have a second child…”

“What if the company had trained their employees not to do…”

Often the answer to these questions are that this horrible thing would not have happened and jurors attribute injuries, death, disability, horrible accident to bad luck, fate, God’s will, or simply shrug and say “bad things happen”.

Advertising researchers take current thinking in the story-telling model a bit further. Krishnamurthy & Sivaraman (2002) found that counter-factual thinking induces careful scrutiny of incoming information. Our thought is that this careful scrutiny is due to the recipient assessing how this new information fits with the story they have individually constructed.

The storytelling model would say that you sequence the order in which you introduce the parties. So, for example, if you are the plaintiff, you might tell the story of the drunk driver irresponsibly running a red light and injuring or killing the plaintiff so that the juror will think “if only s/he had not driven drunk” rather than “if only she hadn’t taken the alternate route that morning”.

What Krishnamurthy & Sivaraman’s work would say is that yes, you tell the story in that order and then you articulate the counterfactual that works for your case for the juror: as the plaintiff (“if only s/he had not driven drunk”); as the defense (“if only s/he had not taken that route”). In other words, you don’t leave it up to the juror to generate the counterfactual—you articulate it for them in opening statement and this will, according to Krishnamurthy & Sivaraman, result in the juror’s carefully scrutinizing the remaining evidence through the filter of the counterfactual that works for your case.

Krishnamurthy, P. and Sivaraman, A. (2002) Counterfactual thinking and advertising responses. Journal of Consumer Research, 28(650-658).