You knew that when you ran to answer the door that the pot would boil over in the kitchen, you knew all along that the neighbor was the killer after he was revealed in the horror movie, and you always knew that the Yankees would pull through after they beat the Red Sox in last few moments of the 9th inning. How often in your daily life do you find yourself saying “oh, I knew that this would happen” or “I knew it all along”? My guess is more often than you might imagine. This tendency to look back on unpredictable events and think that they were easily predictable, or even inevitable, in hindsight is aptly called the hindsight bias.[1] And the hindsight bias has been long understood to play a role in all facets of human decision-making, including in litigation.[2]
Hindsight Bias in Real Life
A notable example of the early recognition of the hindsight bias is found in a familiar book. In his 1867 novel War and Peace, Leo Tolstoy not only delivered a masterpiece of historical realism, but also used his narrative to outline the effects of the hindsight bias. As he detailed the events of the 1812 Napoleonic invasion of Russia, Tolstoy noted that many other authors who wrote about the invasion wrote as if the actors knew all along what the outcomes of their battles would be. For example, Tolstoy remarked that Russian authors were fond of “telling us that from the commencement of the campaign a Scythian war plan was adopted to lure Napoleon into the depths of Russian . . . pointing to notes, projects, and letters which contain hints of such a line of action.”[3] However, Tolstoy stated plainly that these “conjectures” were only made with the hindsight of what actually happened in the battle; and that “had the event not occurred, these hints would have been forgotten, as we have forgotten the thousands and millions of hints and expectations to the contrary which were current then but have now been forgotten because the event falsified them.”[4]
Even though the hindsight bias has been around since at least the time of Tolstoy, the bias was not studied formally until the early 1970s.[5] The hindsight bias was first reported in 1975 by the American psychologist Baruch Fischhoff, a student of the father of cognitive bias research, Daniel Kahneman.[6] In his research, Fischhoff wanted to test what he called “creeping determinism” to confirm that people tend to perceive known outcomes as having been relatively inevitable in hindsight.[7] In his study, participants were given brief descriptions of real historical events with four potential outcomes for each, and asked to predict the probability of each outcome being the true one.[8] Some participants were told in advance that one of the choices was the true outcome, though they had not always been given the correct one, and were then asked give their probability answers as if they hadn’t been told the “true” outcome.[9] The results confirmed that those participants who were told the “correct” outcome in advance were significantly more likely to view that answer as “inevitable,” with most participants giving a much high probability to the outcome they had been told was correct, despite being told to ignore it, and despite the outcome being an incorrect answer.[10] From this, Fischhoff concluded that “finding out that an outcome has occurred increases its perceived likelihood”[11] and further, that decision makers are usually “unaware of the effect” that the hindsight bias has on their perceptions of situations.[12]
Hindsight Bias in Litigation
Since Fischhoff’s initial research, numerous studies have demonstrated that the hindsight bias also presents in litigation, where it influences juries and judges alike. For example, the hindsight bias has been shown to contribute to “victim blaming” in criminal cases.[13] In a study from 1985, university researchers studied how the hindsight bias influences sexual assault cases. The study included 3 experiments where subjects would read detailed accounts of a hypothetical instance of sexual assault.[14] The hypotheticals were identical except for the concluding sentence, which provided outcome information: half of the subjects read in the last sentence a statement from the victim that she had been assaulted, while the other half read that she had been taken home unharmed.[15] The participants were then told to choose between outcome options and were instructed to decide the outcome based on the whole fact pattern, from a neutral perspective, and to assume that they did not know the outcome of the scenario they had read.[16] The study found that the subjects were significantly more likely to make their decisions based on the outcome they had been primed with in the final sentence, even though they were instructed to view the facts from a neutral perspective.[17]
In the same study, after demonstrating that the hindsight bias existed in the scenario, further experimentation found that the subjects were more likely to blame the victim of the assault when they were told that she had been assaulted.[18] Subjects again read a scenario that was identical except for the concluding sentence which indicated that the woman had either been assaulted or taken home.[19] After the subjects read the scenario they answered questions to determine how much blame they assigned the woman.[20] The research concluded that those who read a scenario with an assault outcome blamed the woman more than those who read a scenario with a neutral outcome.[21]
The hindsight bias can also negatively skew foreseeability analyses against defendants in civil cases.[22] In 1999, Philip Peters, a University of Missouri School of Law professor, discussed the hindsight bias in relation to juror’s perceptions of tort liability.[23] In his article, Peters posited that knowing that a bad outcome, such as a car accident, has already happened can lead hindsight evaluators to assume that the event was more foreseeable than it actually was.[24] To this end, Peters cautioned that the “hindsight bias may lead jurors to mistakenly conclude not only that the plaintiff was a foreseeable victim of the defendant’s conduct . . . but also that the defendant should have take[n] greater precautions to avoid this [obviously] foreseeable danger.”[25] This is a troubling extrapolation because “defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome.”[26]
Additional research from 2016 indicated that this defendant-adverse hindsight bias also existed when a judge, not a jury, is trying a negligence claim.[27] When judges were the fact finders in a hypothetical negligence case, they statistically assumed greater defendant liability when they were provided the outcome of the fact pattern, even though they were told to ignore the outcome in their foreseeability analysis.[28] This indicates that even a more thorough understanding of the law is not an effective mitigation of the hindsight bias.
The research is clear that the hindsight bias can lead to less-than-ideal outcomes for defendants, but this bias can also negatively impact plaintiffs when looking at comparative fault. Comparative fault asks if the plaintiff contributed to the accident occurring. On an injury claim, a jury may look at a plaintiff’s injury with the benefit of hindsight and conclude that the plaintiff did not do enough to mitigate their damages. This can lead to lower awards for plaintiffs because the jury may inaccurately assume that the plaintiff “should have known” what would happen based on hindsight of the outcome. In short, neither side to a lawsuit can escape the hindsight bias.
What all this research boils down to is that human perception is usually not accurate. When a fact finder hears a case, the scenario that caused the injury is typically already over. They are coming into the case with the outcome already available for their review: they know the victim was assaulted, they know there’s been a car accident, they know an injury has occurred. The hindsight bias then forces them to extrapolate what the parties should have known or should have done in the situation based on what ended up happening in the end. And this extrapolation occurs regardless of whether the parties could have reasonably known that an outcome was bound to occur.
Big Picture
Overall, the research paints a frightening picture: that the hindsight bias may make it impossible for a truly neutral verdict to be rendered in a courtroom. When working with human-driven litigation, you open yourself up to the often-blurry picture of the hindsight bias. And unfortunately, most people haven’t really “known it all along,” even though the hindsight bias makes it seem that way.
Luckily, you have other options besides trying your luck with the hindsight bias in court. At Resolutn, we mitigate the human error of the hindsight bias with our technology driven system, creating a truly neutral settlement environment. Resolutn provides an impartial setting for your case to come to a successful outcome, an outcome that’s removed from the distortion of the hindsight bias. Your case doesn’t have to settle for court, find out how you can get started with Resolutn on our Features Tab.
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I’ve written similar articles about how different cognitive biases disrupt litigation and how Resolutn can help you avoid these pitfalls. Take a look at our Thought Leadership Tab for these articles and for more ways Resolutn can upgrade your settlement experience.
[1] Why Do We See Unpredictable Events As Predictable After They Occur? The Decision Lab https://thedecisionlab.com/biases/hindsight-bias (last accessed Nov. 18, 2022).
[2] Philip G. Peters Jr., Hindsight Bias and Tort Liability: Avoiding Premature Conclusions, 21 Ariz. St. L. J. 1277 (1999).
[3] Id.
[4] Id.
[5] Baruch Fischhoff, Hindsight Does Not Equal Foresight: The Effect of Outcome Knowledge on Judgment Under Uncertainty, 1 J. of Experimental Psych.: Human Perception and Performance 288 (1975); Erik Johnson & Nir Eyal, Hindsight Bias: Why You Make Terrible Choices, Nir and Far (last accessed Nov. 17, 2022) https://www.nirandfar.com/hindsight-bias/.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Fischhoff, supra note 5 at 297.
[12] Id.
[13] Ronnie Janoff-Bulman & Linda Carli, Cognitive Biases in Blaming the Victim, 21 Journal of Experimental Social Psych. 161 (1985).
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] See generally, Peters, supra note 2.
[23] Id.
[24] Id.
[25] Peters, supra note 2 at 1282.
[26] Peters, supra note 2 at 1284.
[27] Aileen Oeberst & Ingke Goeckenjan, When Being Wise After the Events Results in Injustice: Evidence for Hindsight Bias in Judges’ Negligence Assessments, 22 Psych. Public Policy and Law 3 (2016).
[28] Id.