Faced with the large amount of complex information being presented to them in trial, jurors will inevitably use “heuristics” – mental shortcuts – to help them keep up. Sometimes, these shortcuts lead to perfectly reasonable judgments. Other times, they create distorted perceptions and erroneous conclusions.
One problematic heuristic is known as Hindsight Bias, or as it might be casually called, “Monday-morning quarterbacking.” Trial is a retrospective process; jurors know the outcome of the events being discussed because they’ve already happened. Jurors are instructed to set this knowledge aside when considering each party’s actions – but that doesn’t mean they can. With the “benefit” of hindsight, it’s all too easy to view the events as a chain leading to an obvious conclusion. Consciously or not, jurors can then place blame on one or both parties for failing to have foreseen this same conclusion and taken measures to avoid it.
Unfortunately, the defense is often the one forced to bear the brunt of jurors’ Hindsight Bias. By nature, claims in trial tend to suggest the defendant’s actions or inactions led to a harmful outcome. The search for causation begs questions about what the defendant could have done differently.
Where Do Counterfactuals Come In?
Counterfactual statements can counteract or reinforce Hindsight Bias by inviting jurors to compare what was with what might have been. Counterfactuals pose an alternative to reality, whereby jurors imagine whether different choices and actions would have led to a different outcome. They can emerge organically in jurors’ minds, or be put forth by plaintiff or defense attorneys.
While counterfactuals can lead to flawed judgments, jurors’ temptation to rely on them isn’t irrational. When facing a negative outcome, people generally want to understand how such an outcome can be prevented in the future.1 But while there are additional strategies to reduce jurors’ tendency to engage in Hindsight Bias,2 counterfactuals can be used strategically by the defense to try to play down a defendant’s role, or play up a plaintiff’s/3rd party’s role, in an incident.
What Are the Different Types of Counterfactuals?
There are two general types of counterfactuals: The “If Only” and the “Even If.” Each plays an important role in conjunction with Hindsight Bias.
1. The “If only…” (aka “But for…”) Counterfactual
Example: “If only the City had fixed the road, the accident would have been prevented.”
(“But for the City’s failure to fix the road, the accident would not have occurred.”)
In this instance, the attorney making this argument has identified that changing the City’s behavior would have changed the bad outcome; in other words, the behavior had a direct causal link to the outcome.
The “If Only” counterfactual is often used by plaintiff attorneys to reinforce Hindsight Bias in jurors’ minds. By jumping right to causation, this counterfactual glosses over the consideration of whether the City acted reasonably at the time. Instead, it focuses jurors on one factor that seemingly could have prevented the outcome, and makes it appear more obvious that the City should have expected (and thus prevented) such an outcome. “That road was clearly an accident waiting to happen,” jurors might say. In a personal injury lawsuit, this would likely translate into an increased allocation of blame and higher damages against the defendant.
2. The “Even if…” Counterfactual
Example: “Even if the City had fixed the road, the accident still would have happened.”
Here, by contrast, the attorney identifies that the outcome was likely to occur regardless of the party’s behavior. This counterfactual posits an alternative reality wherein the City did fix the road, but other factors – perhaps driver distraction, alcohol, or weather conditions – caused the incident to occur anyway.
This type of counterfactual undoes the tendency to engage in Hindsight Bias by distancing the subject from the outcome. Defense attorneys can use it to help jurors focus on possible alternatives and make the actual outcome seem less obvious or less controllable. Of course, plaintiff attorneys can do the same to try to shift the focus away from their own client’s behavior.
How the Defense Can Use Counterfactuals
1. Play Down the Defendant’s Role
Presenting jurors with the “Even if” counterfactual can be an effective counter to Hindsight Bias. By framing the situation as one in which the defendant’s behavior could be changed or removed without affecting the outcome, you can distance the defendant from the chain of causation and/or encourage jurors to place more weight on other factors.
Example: Even if the defendant’s truck had been parked legally, the other driver was texting and still would have blown through the stop sign and hit the plaintiff.
This counterfactual suggests that the defendant’s parking job did not play a role in the plaintiff’s injuries; rather it was the other driver’s recklessness.
2. Play Up the Plaintiff’s (or a 3rd Party’s) Role
Similarly, the defense can use its own “If only” statements to shift jurors’ scrutiny onto the plaintiff’s (or another party’s) actions and responsibilities.
Sometimes this is easier than others. But the basic goal is to emphasize the actions or inactions of others, such as the plaintiff’s failure to take reasonable precautions or make it clear to the defendant earlier on that they felt the defendant was acting inappropriately (e.g., in a harassment case).
Example: If only the plaintiff was paying attention when driving, then the accident would have been avoided.
In this manner, the defense can reinforce jurors’ Hindsight Bias – but in a way that’s beneficial to the defense case.
Tips and Caveats
- Make Sure Your Counterfactuals Are Believable. For jurors to be receptive to your counterfactuals, they must be able to clearly visualize how the differences you present would (or would not) result in a different outcome. The easier it is for them to imagine, the more influential the counterfactual will likely be.
- Build an Advantageous Timeline. Jurors often give extra weight to an event or events that appeared to “get the ball rolling.” So in cases where jurors can identify a chain of causal events, it is ideal if you can construct your presentation of the timeline to put the plaintiff’s controllable and consequential actions near the beginning. Then, the defendant’s subsequent actions are more easily seen as having limited impact, or as a justified response to the plaintiff’s actions.3
- Use Voir Dire. Some jurors are more or less likely to accept various counterfactuals. As such, voir dire will be an important opportunity to determine who will be best for your case. What are juror’s relevant experiences? Where do they place the locus of control? What actions do they consider normal vs. abnormal?
Most cases will leave room for you, your opponent, and jurors themselves to construct counterfactuals. As a defense attorney, keep an eye out for ways you can control the counterfactual narrative to focus jurors on alternative factors and limit their willingness to attribute your client’s behavior to the outcome.
By: Merrie Jo Pitera, Ph.D. – CEO
1 Sharp Penya, Lynette. (1998). “Counterfactuals and Juror Decision-Making: How the Alternatives Jurors Entertain Affect Their Judgments in Sexual Harassment Cases.” National Institute on Sexual Harassment, American Bar Association: F-10.
2 Stallard (aka Pitera), M.J. & Worthington, D.L. (1998). “Reducing the Hindsight Bias Utilizing Attorney Closing Arguments.” Journal of Law and Human Behavior, vol. 22(6), p. 671-683.
3 Sharp Penya, F-14.