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”I would have done the same thing… as long as it turned out okay.”

Monday, August 19, 2013
posted by Douglas Keene

captain hindsightTwo weeks ago, we were conducting pretrial research on a very sad case in which the Plaintiff had been injured horribly through a behavior that almost all of us have done repeatedly in our adult lives. Before we gave any information on the case, mock jurors were questioned and almost all acknowledged doing exactly the same thing our Plaintiff had done.

However, once they heard the condition the Plaintiff is now in, they began to look for ways to explain why this would have never happened to them.

She had access to warnings and the mock jurors would have paid attention to those warnings.

She should have done research and educated herself because the mock jurors certainly would have done research and educated themselves.

She probably brought this on herself through her behavior (which was certainly behavior the mock jurors never would have exhibited).

And so on. And so on.

We’ve all seen hindsight bias at work but this time it was particularly virulent. [In truth, the most maddening examples are when someone is found negligent of their own interest because they believed good news. Like, “your car will be fine” or “that lump is benign”. Jurors routinely criticize the person whose car soon breaks down or whose lump becomes stage 4 breast cancer for believing the good news. They should always get a second opinion– to challenge the good news.] The fear response is because the injuries to our Plaintiff truly could have happened to any one of us– and that terrified our jurors. They had to find ways to feel safer in a world in which bad things could happen pretty randomly. So it was a nice thing to return home to find a new article on how we differently we appraise risk when it’s on our own account, in contrast to how we judge risks taken by others.

In the new study, what these researchers find, is precisely what we saw in this recent group and in other displays of hindsight bias. In brief, when physical safety was involved, research participants prescribed more conservative actions for a friend, while they themselves would entertain more risk when physical safety was involved. It was as if the research participants felt they could personally withstand higher levels of risk than could the friend. The researchers believe this likely happened due to the “better than average effect” or perhaps because we don’t want the responsibility of making a choice for another that might turn out badly. We seek, say the researchers, to preserve our relationships and to avoid blame.

But, the researchers asked something else too. They didn’t only ask research participants what they thought a friend should do. They also asked the research participants what they thought a friend would do. And the research participants predicted the friend would do what the research participant themselves would do. That is, they thought that in real life, the friend would do the riskier thing.

That’s intriguing. It’s pretty common for us to believe others would believe and behave pretty much the way we ourselves believe and behave. It’s called the false consensus effect. So while we recognize that others will probably do the same things we would, we don’t want to make that choice for them because if it turns out badly, we’ll get blamed.

Something different happens in hindsight bias. We may know full well that we would do the same thing (and perhaps have done the same thing) that got the Plaintiff injured. And that’s exactly what happened with our group of mock jurors.

They reported honestly that they did the same thing the Plaintiff had done.

But once they had the information on what happened to her, they back pedaled furiously.

They found multiple reasons why this horrible thing would never have happened to them because they would have listened, educated themselves, researched, asked questions, sought second and even third opinions, and so on. When asked about their earlier reports contradicting their post-evidence conclusions, the mock jurors returned to their hindsight rationales: she brought this on herself and here are all the reasons why.

In the article stimulating this post, the researchers say we try to avoid blame by placing friends in less risky situations than we would choose for ourselves when it comes to our physical safety. We want to preserve our relationship.

In our pretrial research experience, mock jurors try to rein back their own fear and terror at how easily something horrific can happen by pointing out all the errors made along the way by the Plaintiff. In short, they actively seek out information they can use to blame the victim and thereby shore up or preserve their own sense of safety and predictability in the world.

If only…. 

I always….

I would never…

So what is the answer? How do we keep the jury on track for a reasonable verdict? There is a school of personal injury litigation theory embraced by many plaintiff attorneys (the “Reptile Theory”) that suggests that what drives decision-making in jurors is fear. Fear that it could happen to me. Fear that if we don’t stop the behavior that created this hazard, it will strike again. Yet in our mock trials, and in this research, we see that fear of risk can actually turn Plaintiff jurors toward the defense. It can generate hindsight bias.

Fear too large can create a distorted impression that the risk was so large as to be obvious, and that any one would have anticipated it. The solution is to allow the jurors to have a rational ‘out’. To allow them to distance themselves from the tragedy, from the risk, and see it a bit more objectively. Not “what would you do”, or “what would your friend do”, but something a bit more emotionally manageable: “What would a reasonable person do?”

The consumer dealing with an unsafe product or a supposedly reliable diagnostic test, has a right to rely on the results in the way a “reasonable person” would. The way the defendant knew they would be relied on when they sold the product or wrote the weak warning or issued the test results. They offered it to be accepted, and a reasonable person should be allowed to accept it as truth. And truth is comfortable to us. Just as fear will send us running for safety.

Stone, ER, Choi, YS, Bruine de Bruin, W, & Mandel, DR (2013). I can take the risk, but you should be safe: Self-other differences in situations involving physical safety. Judgment and Decision Making, 8 (3), 250-267


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