Steve Wood, Ph.D. and Linda Khzam, M.A. break down the topic of hindsight bias and its impact on juror decision-making. They explain how learning an outcome makes jurors believe it was predictable all along, leading to exaggerated foreseeability and unrealistic expectations of what defendants “should have known.”
Steve and Linda discuss how hindsight bias appears across different case types from trucking and transportation to incidents involving police officers to decades-old sexual assault and molestation cases where jurors often apply modern norms and knowledge to past events. They also highlight how technology, especially video evidence, further expands hindsight bias by giving jurors clarity and insight that defendants never had in real time.
Steve and Linda also cover counterfactual thinking (i.e., “If only they had done X”) and how plaintiffs use it to oversimplify causation. Lastly, they outline how defense counsel can confront hindsight bias during voir dire by using relatable examples and consistently reframing what was knowable in the moment rather than after the fact.
Full Episode Transcript
[00:14] Steve Welcome to the Litigation Psychology Podcast brought to you by Courtroom Scientist. Dr. Steve Wood here with my colleague Linda Khzam. Linda, good to see you. Glad to see you back on the podcast.
[00:26] Linda Good morning. Thanks for having me back.
[00:27] Steve Yeah. So, I’m looking forward to talking to you today. You know, as you and I published a paper not too long ago in Law 360 on hindsight bias, and I encourage people to go out and get that, and if they don’t have a copy of it, feel free to reach out to us and we’ll get them a copy. But today, I want to do a little bit deeper of a dive than what we did in the paper talking about that. So, I just kind of want to have you start. Can you just kind of explain what is hindsight bias and then we’ll kind of get into how it affects juror decision making?
[00:56] Linda Yeah, absolutely. And and I again I think it’s such an important topic because it’s so pervasive. We see it in all different types of cases. Um no one is immune to this, and humans do this all the time. Just you know juries juries aside humans make this hindsight error all the time. And essentially what that is what hindsight bias is is a cognitive error that occurs when we already know the outcome. We know how this turned out and now because of that it seems so obvious, right? That outcome seems so obvious, like I should have known that. Duh. Right? But really, what’s happening when when we’re making that error is we’re really making a few errors. We’re making about three different kind of uh errors here. Um we’re making there’s a error in memory. How we remember the facts after we know the outcome. Um we’re making an error in how foreseeable this seems, right? After the outcome, that outcome seems so foreseeable. And then we’re also overestimating our predictive abilities. How how predictable this seems. Uh it now seems so much more predictable after you know the fact uh after you know the outcome. So, all these things are happening and now it makes you seem like you know shoot that’s so obvious. How did I not see that? How did they not see that? How did they not anticipate that? Um so that’s kind of what hindsight bias is. Um, and again, we see it kind of all over the place in so many different cases.
[02:24] Steve And we see it a lot. I know you’re you’re a huge sports fan. Um, so this right up your alley.
[02:28] Linda Oh yeah, you know me. Go sports.
[02:30] Steve Uh, but this is what we see on on, you know, Saturday and Sunday of football when a trick play works. You’re like, “Oh, it’s a great play. I knew that was going to work.” And if it doesn’t, it’s, “I can’t believe they didn’t do that. How did they not see that the defense was set up this way? How did— Why did they think that was going to be a good play? I knew that was never going to work.” Right.
[02:51] Linda Well, that’s what you see that on Sunday. I don’t see that on Sunday. No, I’m going to go watch Moulin Rouge this weekend while you guys are doing whatever you do on Sunday. Um, but no, absolutely. So, so kind of going back to those errors that we make, if we just talk about talk about memory, once we know the outcome, we know what happened. Now, you kind of when you rewatch it in your mind, things stand out as being so much more obvious, right? A warning becomes such a, you know, a red flag is redder. The warning seems so much more obvious. You’re highlighting all the different things in your memory that reinforce the outcome, right? Everything um you’re going to highlight the things that make it seem obvious that this was the outcome. Um if you you know we’ll take it to movies. Have you seen uh Fight Club?
[03:39] Steve I have.
[03:40] Linda Please tell you seen Fight Club. Okay. Thank goodness. Okay. If you have not seen Fight Club, um this is your spoiler alert. Um also, if you have not seen Fight Club, as soon as you’re done with this, go watch Fight Club. You won’t be able to talk about it, but do go watch it. Um but this kind of happens in any movie like like a Fight Club where once you’ve you go back, you you’ve watched the movie, now you know the outcome. Now you know Tyler Durden is is a that’s his name, right? Tyler Durden. There we go. Right? Now you know he’s not a real person. Then when you think back on it, now all you’re going to highlight is all the things that reinforce that he was not real. Like why is um his girlfriend Marla I think is her name. Why is Marla like she’s confused and now all the guys standing around in the kitchen. Why do they look so confused? Oh goodness. I you know what? We never saw them um talking together in front of other people. All these things now become highlighted to reinforce um the the ultimate outcome that that now you know occurred.
[04:37] Steve Well, I think that’s a perfect example though, right? Because if you if you watch it one time, you know the outcome, then when you go back, you’re like, “Oh, there’s a spot. There’s a spot. There’s a spot. How do they not know this? How did I not see this? How, you know, how does the others not know this?” But I want you to talk a little bit about that because in your experience in California, I think that plays a lot into what you’ve been dealing with and what you’ve been seeing with a lot of jurors because once again, they see the outcome and then they’re going back and looking at the case facts and going, “Well, there’s a red flag, there’s a red flag, there’s a red flag. How do these people not see it?” So, can you talk a little bit about what you’ve seen in your experience?
[05:13] Linda Yeah. Yeah, absolutely. Um, well, this all kind of ties into what we’re seeing in in California. We had AB 218 which essentially kind of um opened up the statute of limitations on sexual assault um cases. So, we’re seeing a lot of cases come through that um occurred a long time ago. But um those cases are wrapped up. Yes, the memory issue like we just talked about. Um people will go back and look at things that happened before and they will highlight all the things that will re— that reinforce the outcome. But there’s also the foreseeability problem that is another thing where you know once you know the outcome once you know like in my case for these 218, AB218 cases once you know that a sexual assault has taken place that outcome seems so foreseeable like that would be obviously that’s going to happen here. Obviously, that’s going to happen if you didn’t do A B C or D. Now, that seems because of this hindsight bias error, that seems like the most obvious logical answer, the most obvious logical outcome. Um, again, because we already know, we already know what happened. If we uh bring up I’m going to keep my movie theme going here.
[06:23] Steve I like it. I can deal with movies, too.
[06:29] Linda Yeah, I’ve been watching um a bunch of old school movies with my kids. We just went through all the all the Terminators. So, now I’ve got a bunch of Terminator analogies I can use. But um what what comes to mind when thinking about foreseeability this foreseeability error is if you ever um whenever they have those like science articles where it’s like research researchers discover like frozen insect from Mesazoic era and then everyone you go to the comments and they’re like oh don’t touch that that’s not going to end well. The only reason you think it’s not going to end well is because you’ve seen Jurassic Park and you know that that’s right. Don’t mess with the, you know, the the dinosaur DNA that’s frozen in Ember, right? But scientists having not seen, you know, Jurassic Park or not um knowing the outcome seems like a totally cool um option, right? The outcome doesn’t necessarily mean that T-Rex is going to break through the through the the fence and destroy everybody. It could also be that you really have a fabulous um you know display of you know so many other things could have happened that wasn’t that but now that outcome seems like the obvious outcome because you know that that happened. So, excuse me. If you link it back to these AB218 cases, these sexual assault cases that we’re seeing a lot of, um, what’s happening is that, uh, employers, um, businesses, schools, right? They’re all being sued and and it comes to the foreseeability that the the school, the employer, they should have seen this. You should have known. This should have been obvious. And they’re looking at it from a lens that exists today, right? Looking back at it, they’re seeing a closed door. If we talk about a school case, right? All the doors are closed. How obvious that that is a problem. We see doors closed all all the time, right? A closed door is not a problem in and of itself. But once you know that sexual assault took place, now that door seems like a problem, right? I have I mean, I have kids. They have their their doors closed all the time. I don’t walk by their door and say, “Oh god, this is suspicious.” If I now walk in and my daughter has painted neon orange all across her her wall now, it’s like, “Oh my gosh, she had the door closed because she was doing something bad.” But a door closed in and of itself is not is not something that a person would be alarmed with. Um, so so that’s one part of it there. The AB218 cases are also there’s like an extra layer there with this hindsight error. They’re doing the error with memory. They’re doing the error with the foreseeability. But now with those cases, a lot of these are coming out um they’re cases that occurred in the 80s, they occurred in the 90s where things that we know today, they didn’t know them then, right? They’re looking at these cases from a 2025 lens, but that occurred in 1980, 1990, right? Where it’s like, now we know about grooming. Now everyone talks about what sexual assault looks like. Now everyone talks about what we should be aware of. In the 80s and the 90s, there was no grooming, right? We didn’t talk about grooming. even when I graduated high school, which is long enough that I’ve already had my 20-year reunion. But, um, even that, we didn’t talk about grooming. So, when jurors are looking at these cases, what we see happening is that they’re doing the hindsight bias because they know an assault took place. They’re going to highlight all these glaring warning signs that really would not be glaring otherwise, but also they’re putting their their knowledge of grooming, their knowledge of sexual abuse onto what a principal or a teacher would have known in 1980. It’s kind of like if you if a if you think about like a a medical a medical case, a doctor here, look at this MRI in the 1980s. MRI, this patient’s got all these weird symptoms. If a doctor today looked at it, they might easily recognize, oh, that’s MS. Obviously, that’s MS. But a doctor in the 1970s could not possibly diagnose MS because no one talked about MS. No one knew about MS. But that’s kind of what we see happening is how do they not know that this is grooming behavior? Well, number one, it wasn’t that obvious in real time. And number two, no one knew about this. No one talked about that kind of stuff.
[10:51] Steve It goes back to the difficulty too about it’s not about what they know now. It was about what they knew then and then what was reasonably done at the time. And I think we see a lot of times jurors have a really hard time of trying to see what was reasonable at the time because they already know the outcome and then now they’re trying to go back through and piece together those parts. Now, it’s not all jurors though. I mean, I think we’ve seen some jurors that are more defense oriented that will say, “Okay, I I get it. I remember what it was like in the 70s. I remember what it was like in the 80s and it wasn’t something we talked about. It wasn’t something that was top of mind. So, it makes sense on why they wouldn’t have thought that.” But what has been your experience though a little bit with people who were never born in the 70s and were never born in the 80s? How difficult is it for them to go back and see that because they’re so used to this is what’s the topic, this is a conversation, this has always been known. And for them to think that it was never known is is just something that’s foreign to them.
[11:50] Linda Yeah. Yeah. Definitely with these cases, I do see that um you know, again, the older population will recognize, you know, what things were like in the 70s, 80s, 90s. Even for me, we had Saturday detention and now my kid is like, “Oh, we’re not allowed to have detention.” I’m like, “I’m going to make my own detention. What are you talking about?” But right there, those things things have changed so much. um the the older older population will sometimes have an easier time um recognizing that. But we also see a bunch of them that fall fall victim to this too where no I mean even in even in the 80s that would have been weird really not so much. I think the difference becomes um when you introduce this idea to jur— when we do mock jury research and we do our focus groups if I’m talking to jurors and I I introduce this idea of hindsight well hey you know this is how things occurred back then you know sometimes this is what we do we’ll look back and now it seems obvious but not but at the time it wasn’t some people are really receptive to that and that even young folk will be like oh you know what that that’s true if you got someone that’s introspective that’s insightful that’s open, they will take that and go, you know, yeah, actually, you’re right. Like, I don’t know what things were like in the 80s. Um, and you can kind of move the needle a little bit in that way.
[13:06] Steve I think though, even still, you get to what you’re probably saying, too, is that even when you do that, some people won’t buy into it, some people will. And I think that actually speaks a lot to the value of jury research and also the value of understanding jurors from a jury selection standpoint because there’s going to be those younger jurors who didn’t grow up in that time who are going to say, “Oh, that totally makes sense.” But then you’re going to have another group that’s going to just not buy it by any stretch of the imagination and is going to think that’s just not a thing. And they’re never going to be convinced otherwise. And I think that goes to their attitudes and experiences about whether they will or they won’t. So, you can argue all day about what was reasonable and for them to be able to see it through that 1970, 1980 lens, but just from a personality standpoint, they’re just never going to get there no matter how much you argue it.
[13:53] Linda And that’s definitely something you want to tweeze out obviously in voir dire and to to see who would who does already uh who would be susceptible to falling into that more so than than the other person and introducing the concept of hindsight bias so that they know that they’re going to do this. It’s not bad. It’s not— doesn’t mean you’re there’s something wrong with you. We all do this all the time. Every decision maker whether you’re a juror or just you know watching movies, right? We all do this all the time. But be mindful that this is what this is what you’re going to do. This is what’s going to happen. Um so yeah, absolutely. I think that that is something to tweeze out because what what hindsight bias essentially will do um again, you’ve got these faulty memories. You’re highlighting things that are going to um will stand out to reinforce the outcome that you already know happened. You’re going to um it’s going to seem so much more foreseeable. And then the other part is right the predicted we we overestimate how predictable this was. Once you know the outcome, you’re going to overestimate you’re going to think any reasonable person duh obviously would have seen this. So now if you have have made this error that any reasonable person would have seen that when it comes to the negligence question which is you know what would a reasonable person do in this situation? Well now this person’s no longer reasonable. So, I think we’ve got to uh make sure that we’re letting making jurors aware um that this is occurring.
[15:21] Steve Yeah. And to, keeping moving with your with your movie analogies. I want you to talk a little bit about how technology has changed this as well as far as now you have dash cam footage, you have security cam footage, you have a lot of footage that people are able to see and pictures and a lot of media that people are able to see. Talk a little bit about how that technology then influences the way jurors see this information as well.
[15:45] Linda Yeah. Yeah. Absolutely. This is huge in um in trucking cases, car accidents, things like that, especially where we have dash cam. Um they’re watching dash cam footage. A lot of times it’s in slow motion. A lot of times it’s stopped and paused and they’ve got like, you know, the the the time stamp at the bottom in slow motion and you’re seeing it to the millisecond. Um they’re watching a car slowly approaching a curve and a bend in the road. They’re able to see every little sign that the car has passed that says caution or slow down or curve ahead. All these things now again we’re going to remember the things that reinforce this outcome. So now those the bend in the curb become so obvious, right? The the little sign a mile back that seems so obvious. How did they not see that? They were warned with that sign a mile back when really if if you’re driving I mean realistically if you put yourself in that person’s shoes I see a million different road signs I pay attention to some of them I’m not seeing every single one of them I’m also not anticipating that I’m going to crash so I better take heed of that of that sign we’re not doing that memorializing every single thing um with hindsight bias you know with the benefit of hindsight bias so but jurors are not getting the opportunity to see this in real time. They’re seeing it broken down, rewound, slowed down, timestamped. Uh same thing with, you know, police shootings, right? They’re seeing uh the body worn, the body worn. They’re getting the advantage of seeing it knowing what happened, but they’re not there in person. They’re not feeling what what the person the officer is feeling. They’re not seeing things um you know, with the lens that the officer saw it at. They’re seeing things from down here. Same thing with dash cams. the dash cam is not always what the driver saw, but that’s what they’re seeing. So, they’re getting an advantage in knowing the outcome and getting it piecemealed um in different ways to reinforce what ended up happening.
[17:44] Steve Yeah. And I just in in a recent one I can think of, I had it happen where we were watching dash cam footage where a vehicle made a left-hand turn and and essentially car came out of nowhere in and hit the vehicle that was making the left-hand turn. And we went through the video a couple times and, you know, jurors were watching it. Then we went back and I even asked, “Okay, where do you see this vehicle first appear? Like where is it?” And some people would say, “I can’t see it there.” And then other people were like, “I can clearly see it right there. Right there is where I would have seen it.” And there was this difference between the jurors on where they could even see it. So, when you break it down, like you talked about frame by frame is it makes it that much more obvious. So, for some of these jurors, it was like, I see him right there and he’s 300 yards back. How did this the driver of this vehicle not see this individual? And then other people, like I said, would have different perspectives. And what I found interesting was those people who could see said they saw them 300 yards back were the ones that were more apt to side with the plaintiff. Why? Because they thought it was that much more obvious and they could see it. But it goes to your point though, too, is when that driver was making his decision, he didn’t have the luxury of slow motion. He didn’t have the luxury of being able to sit there and watch it frame by frame by frame like the jurors had, you know, and I think jurors have a hard time of putting themselves in the position of that driver to say, “What did I know? What was reasonable at the time?” And it and it it surprised me to them. They’re going to say, “There’s no way it surprised you because me, I can look at the video and and see that it was completely obvious.”
[19:11] Linda Yeah. And they’re also like if it’s you’re saying that case, they also are looking for right for the for the car. They’re looking for the guy. They’re already on the scout looking for them. That’s not how how things work in real life. But that becomes super difficult to see when I I already know how this turned out and I’ve got a video in slow motion that shows me everything, you know. So, yeah.
[19:34] Steve And I want to talk a little bit about and how kind of counterfactuals a little bit bleed over into hindsight bias. So counterfactuals, if your if your hindsight bias was the I knew it all along, your counterfactuals are more of the what if or the coulda, woulda, shoulda type ideas, you know, and you have kind of these counterfactuals that say if only this would have happened, the outcome would have been better or the the idea of at least the outcome wasn’t worse than what happened. What we typically see is the other opposite view of if you’d only had done something different, this accident could have been avoided.
And I think, you know, we we think about to kind of put it into perspective, you know, they’ve done some research on, you know, Olympic athletes. And the Olympic athlete who gets the bronze medal is actually less upset than the person who gets the silver medal.Why is that? Because the person who has the silver medal is thinking, “If I would have just pushed a little bit harder, if I would have just done this a little bit different, I would have been uh on the on the top of the uh the stand with the gold medal.” Whereas the bronze person says, “Well, I lost by, you know, 3 seconds.” it wouldn’t have really mattered.
You know, if you can think about I always think about from a sports perspective. I’d hate to be the loser of the World Series. I’d rather get bumped earlier in the playoffs because then I don’t have to worry about the woulda, coulda, should have just did this.
[20:53] Linda Yeah. So close.
[20:54] Steve Yeah. So close yet so far away. But I think we see both sides. You know, plaintiffs use it a lot, but I think defense uses it as well. But we see the plaintiffs say, you know, for example, in a premises liability case, if only they would have had security cameras, if only they would have had uh roaming security, this incident would have been avoided. The truth of the matter is though, there it may or may not have is purely speculation. But what it does then is it bleeds over into that hindsight bias, right? Because now you going to the point that you were saying is you know the outcome. You know that this incident happened. So, then you can go back and say you’re right that could have actually prevented it even though there’s no truth to it but then it bleeds over into the hindsight bias.
So, I want you to I mean what has been your experience with that? Have you seen that where whether it’s plaintiff or defense more on the plaintiff side that I’ve seen it where they’ve done these if only this would have happened uh it could have all been avoided but the truth of the matter is it may or may not have happened if that would have been changed.
[21:54] Linda Yeah, absolutely. And again, I see it more like you said on on the flip side where it’s like, well, this wouldn’t have happened if blah blah blah if he would have slowed down. This wouldn’t have happened. Again, knowing the outcome of it, now you’ve got this advantage where you can go back and see how one little tweak would have changed this whole entire outcome. That’s what you’re going to make up in your mind. One little thing different would have changed the outcome. Maybe, but maybe not. Not not at all. Right? Maybe slowing down makes zero difference.
Um, and you know, I I’ll use another kind of premise liability uh kind of idea. We had a case where it was a city being sued after a storm. A branch fell in a park and hit hit somebody um hit someone on the head. And all the jurors again got the benefit of benefit of hindsight. All said this was foreseeable and if only they would have closed the park. If they would have closed the park before this happened, you know, if they would have closed the park, this wouldn’t have happened. Number one, most people that that’s not this outcome is not super foreseeable. Number one, we have many storms and nothing ever happens. A branch doesn’t fall on anybody.
But now it seems like, man, if you would have just done this, you would have avoided this whole entire thing. A reasonable person would have just closed just closed the the gate. or if it’s a doctor, if they would have just done one more test, just one more, right, they would have found this diagnosis and we wouldn’t be here. And now that kind of lowers that that negligence threshold to make it just seem like, man, this the a different alternative was so easy, right? And and you just didn’t do it.
Or I’ll go back to my movie analogies, every scary movie that you’ve ever seen, and you’re like, man, why did she go hide in the barn in the dark barn? If she would have not hid there, if she would have just ran, this wouldn’t have happened. Well, I mean, maybe, but maybe Leatherface was in the forest that she would have ran into too, right? But, um, all these little You can now go back and re rethink of it and find all these other million and a half things you could have done differently to avoid this.
[23:58] Steve Which makes it really difficult from the defense perspective, right? Because I think the plaintiff has the upper hand. And you know, a lot of times they talk about the if you want to talk about the kind of the the the downward counterfactuals of, well, this accident could have been worse. Thank god it was the way it was. I think that becomes a hard sell uh to the jury to say, well, you know, they only lost a limb. Maybe they would have they could have lost multiple limbs, so I’m glad they only lost a single limb. Um, but I mean, I guess—
[24:24] Linda Silver lining alas.
[24:28] Steve Yeah. So, I mean, that that’s never going to work. So I mean I guess the question becomes how difficult and and how do you address it from a defense perspective to you know identify you know the counterfactuals and also identify the hindsight bias because the counterfactuals bleed into the hindsight bias and ultimately the hindsight bias is is the more prevalent thing that we’re talking about today.
So, how do you address that from a juror’s perspective? And you touched on it a little bit about voir dire and essentially identifying that cognitive mistake that you know they’re going to make before they make it, but can you talk a little bit about how should defense attorneys, how should the defense bar be using this with this knowledge about hindsight bias and how it impacts jurors?
[25:04] Linda Absolutely. And like you’re right, we touched on it a little bit. It’s got to be a theme that’s kind of thread throughout the the entire trial. So, starting with voir dire, let them know right off the bat, hey, this is this is what this is. This is the error. We all make this error. How— And then maybe we can throw in an analogy, right? Um like the the football one that you used, you know, um you know, once you know the outcome of the play, if it turned out great, then you’re like, man, that coach was a genius. If it was awful, what a stupid call, right? Um hey jurors, why do you think that happens? Does that happen to you? Kind of engage them in that conversation, right? In voir dire um to let them know again this is how it plays out in real life. We all do this. You’re going to make this mistake in in this trial as well.
Particularly in cases like again we’re talking about these sexual assault cases that occurred in the 80s that needs to be layered in. Start with voir dire. Layer it into your openings. Again, we talked about remember we talked in voir dire about blah blah blah. You know this case happened in the 80s right? We need to be able to to judge what the actions were based on what they knew at the time, right? They didn’t have the benefit of of um a camera. They didn’t have the benefit of slow motion. They didn’t know the terms for for grooming and things like that. That needs to kind of be tailored in to again the standard is not to be able to view things with perfection um or with the benefit of hindsight. What did they know at the time? At the time, what did they know? Layer that in again into your opening.
And then at closings, again, that’s got to come in again. Remember, we talked about this hindsight error. We’ve talked about things that occurred 40 years ago, right? What did they know at the time? We need to judge them. Put yourself in in their shoes. What did they know at the time? What could they have done with the information they knew at that time? Um, so again, I think it all comes down to making them aware that this is something that happens. You’re going to make this error. I’m alerting you to this to this error and you’ve got to make sure that you’re committing to I’m going to judge them based on what they knew at the time. Right? That’s maybe another voir dire. Can you commit to judging um this case or or evaluating this case based on what the teacher knew at the time, what the principal knew at the time, what the driver knew at the time, and kind of get them to commit to trying to be aware of this of this error they’re going to make.
[27:26] Steve Yeah. And there’s always obviously the caveat of the juror who’s going to say, “Yeah, I’ll commit to, you know, holding to what they knew at the time, but they should have known this at the time, right?” And that’s another thing you want to be getting out too is is the juror who is comfortable doing that, but then the juror who’s going to say, “Yes, I will do that, but they should have known at the time.” And that’s another thing you want to be looking for because once again, that goes to attitudes and experiences of that juror that once again, they’ll commit to it, but they’re at the same time going to say, “Yeah, you should have still known it, though. I don’t care if it was the 70s, ‘ 80s, 90s, you should have known it based upon the information.”
[28:00] Linda Yeah, absolutely. And then again, that’s something to tweeze out in voir dire, whether you’re using an analogy or um you know, analogy about what a reasonable person would do or what a reasonable person would know. Get them engaged. What do they think is reasonable? Do they think it’s reasonable? Because we do hear that when you know I uh we do focus groups or other jury research and I’ll say, “Hey, this happened in the ’80s. Was this acceptable in the 80s or was is was it weird today and it was weird back then?” And a lot of people will say no. That was it’s weird today and it was weird back then and it’s like no not really. Teachers used to hug students all the time. Teachers used to drive students home if they needed to. That was pretty typical, right? I had Saturday detention that was with the teacher, right? One-on-one. So, no, it wasn’t weird back then. So, those are the people you want to find out who’s going to be on the extreme end, right? Are you going to hold is your bar this high all the way up here? Um yeah, we got to get that out right at the get-go.
[28:54] Steve Yeah. And I think it goes back to just once again the value of the research and and the value of taking time and in creating your voir dire questions versus using, you know, I use these in every single case. I mean, I think each case is going to be different and there’s going to want to be time that you spend teasing it out because I think the way you ask those questions is also important as well, right? Is you can ask you and I could ask a similar question with a similar context, but the way you word it, the way you present it, the way you explain it to jurors is going to elicit different responses and how you do it. So, kind of talk a little bit about that about the time and the thought and the wording and the setup, all of that, how important that is to voir dire questions.
[29:32] Linda Yeah, and and absolutely everything you said. And I think what is also really important um is test it out. Test it out in front of mock jurors. And we’ve been doing that a lot where we’ll do a focus group and we’re really focused on voir dire, get the attorney to go through your voir dire, get a sense for, you know, how comfortable are you with this? Um, talk about that hindsight bias. Are you getting the jurors engaged and is it landing? So, we’ll do focus groups where my the the main goal is to have the attorney run through voir dire. A lot of attorneys don’t get too many uh right, we’re not doing voir dire every day. You know so get that practice on voir dire but also is this landing so once they kind of run through voir dire we can now talk to the jury and say hey did it make sense when we were talking about hindsight bias how important was that um when you ended up making your final verdict right we’ll run through the case hey remember when the attorney talked to you about hindsight bias did you remember that when you were making your your verdict determinations did was that important and see what they think maybe they think it’s stupid that you bring it up and it has no bearing here, right? We want to know that if that’s going to not land or if it’s going to get people aggravated because gosh, how stupid this is so obvious no matter what the time frame was. Let’s get that out. Um, and then again, fine-tune it to to make sure we’re you’re able to to capture what it is you need to capture in voir dire.
[30:56] Steve And I think that’s the other thing too about fine-tuning because you know you and I have have written questions and stuff too and then we talk with the attorneys and then it takes iterations of like well let’s tweak it here, let’s tweak it there and what makes sense in our mind may not make sense in the juror’s mind. So, then you got to elicit that feedback from the jurors like I wasn’t quite sure what you were trying to ask me there because you know you get those questions that sometimes get asked and then you get the blank stare and it’s like all right did anybody understand what I’m talking about? That’s the opportunity for them to be like no I have no clue. It’s like, well, here’s kind here’s the concept. Here’s what I’m trying to get at. What makes more sense that way? So, you know, it could always sound great on the side of either us or the attorney. Ultimately, if the jurors don’t understand what you’re asking, then, you know, it’s kind of like that whole garbage in, garbage out. It might be a great question in theory, but if it doesn’t elicit the responses, then it’s it’s not a good question.
[31:48] Linda Yeah. Uh, the one that comes to mind, and this is not on hindsight, hindsight bias. I’m going on a tangent now, but this comes up a lot when we do the voir dire focus groups, is when we try to get jurors um to understand what counter anchoring is or what anchoring is. And the attorney will go through, I’m going to offer you a number, blah, blah, blah. And then jurors always say, “Oh, well, if you’re offering that number as settlement, then just then that means you did something wrong.” And you’re like, “No, no, no. I was trying to say that’s not what I was trying to say. We’re not admitting guilt. This is not a settlement. What I’m trying to say is I’m giving you a different perspective,” but a lot of times it doesn’t land. So, it’s like, okay, they now thought you were offering money. That’s terrible. So, let’s rephrase that and let’s let’s try it again, right? Let’s try it this way. That that clearly didn’t land. So, uh yeah, absolutely. It’s uh fine-tune, test the case with your jurors. What do they think? How? And sometimes it’s blatantly asking, how can I— Okay, this is a case from the 80s. How can I tell you juror number four about this where it would make sense to you? How can I rephrase this so that that would this is what I’m trying to say to you group of 10 or however many jurors we have. This is what I’m trying to get across. What is the best way to to phrase this so you understand whatever it is I’m trying to say.
[32:59] Steve Yeah. No, I think that’s perfect. So, I’ll give you the last word to wrap up here on on hindsight bias. You know, big issue that we see with jurors. You need to normalize it and you also need to be cognitively aware of it. Um, but kind of put a bow on this for us in in the final word as far as what what attorneys should be looking for as it relates to to hindsight bias, how it impacts the verdicts, and then how to address it going forward.
[33:25] Linda Yeah. Um, and again, the the issue with this is particularly in cases of where negligence, it’s, you know, what would a reasonable person do? When a person is looking at everything in hindsight bias, if you’re from the defense perspective, it seems like you’ve dropped the ball. A reasonable person would have done something different. A reasonable person wouldn’t have done this, this or that. Um, a reasonable person would have, you know, slowed down or whatever it is. Um, so what ends up happening again is kind of lowers that the threshold for negligence, it seems. And and now you’re you’re more of a bad guy because I can see with my own eyes that that bend in the road was dangerous. I could see that there was a sign warning them and all these things are highlighted. So now your comparative fault is is at at issue, right? The negligence is uh problem becomes, you know, again, you’ve lowered that threshold.
So, we’re going to bring it back to again making sure the jurors are aware of this error, but not not that it’s an error that you’re doing something bad. We all do this. This is something we all do. Make it something relatable from something in in a daily life analogy, an example like sports or something that everyone can relate to. And hey, it’s not bad that you’re doing this. Humans do this all the time. We must do this. It kind of helps us. So, um, you know, make helps us to make sense of things. People don’t like to leave things. Um, they like events to make sense. We all do this. It’s natural, but this is how it’s going to impact um this is this is how it’s going to um the error that you’re going to make here.
And find out who those people are in your voir dire. Find out who those people are and uh get them out of there and get the rest of them to commit to, hey, I’m going to be cognizant of this. Bring them back in openings. Bring them back in closings. Remember, we talked about that. So, it’s kind of front of mind because that’s really what you got to do is make put yourself in this person’s shoes. Would you really catch a sign, a warning sign a mile away? Would you really have caught that? Right? Is a door closed really a problem if if you didn’t know anything else? What what did they know? So, um yeah, make sure that the that the jury is recognizing that this is at play um and keeping it front of mind for them.
[35:38] Steve Yeah, great great stuff. And like I said, go check out our paper that we wrote in Law 360. If you need it, feel free to reach out to either one of us to get it. I’m sure, Linda, you and I will be uh co-authoring more papers together. I have a paper coming up that I’m going to do for for Law 360, but then we’ll connect and probably have some more papers that you and I are going to write together. So, keep an eye out for that. And maybe we’ll even have you on the podcast comp have you on the podcast again, right? We’re gonna make maybe make you a staple on the podcast.
[36:04] Linda Looking forward to it. Looking forward to it.
[36:06] Steve All right. Thanks to Linda. Thanks to everyone else who who joined and listeners. Appreciate it. Feel free to go to courtroomsciences.com. All the podcasts, blogs, all of that’s up there. Like, subscribe on YouTube. Uh, reach out to us if you need anything. swood@courtroomsciences.com. L Khzam. Uh, Linda, spell it for the folks.
[36:28] Linda L and then Khzam is spelled K H Z A M. lkhzam@courtroomsciences.
[36:34] Steve All right. And this has been another edition of Litigation Psychology Podcast brought to you by Courtroom Sciences.
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