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August 19, 2019 Feature

Hindsight Bias at Trial

By Thomas A. Wiseman III

“I see dead people.”

Spoiler alert: In the movie The Sixth Sense, when Cole Sear (Hailey Joel Osment) tells his secret to Malcolm Crowe (Bruce Willis), the first-time viewer does not know Bruce Willis is actually dead at the time. That discovery comes much later in this timeless film. A second viewing reveals many clues that were undetectable the first time around. Each clue continuously reveals the fact that, throughout the movie, Bruce Willis’s character is not alive. With the benefit of hindsight and knowing the outcome, all the hidden clues become obvious.

The proceeding of a jury trial is like watching The Sixth Sense a second time. From the very start, the jury knows the outcome. In a health care liability trial, the jurors learn during voir dire that the patient suffered a complication during treatment, or died while in the hospital. Every time the jury hears testimony, each juror knows what the health care providers did not know at the time: the ultimate outcome of their treatment decisions. This knowledge creates hindsight bias that is difficult for any person to overcome and set aside when deciding whether a health care provider was at fault.

Cognitive psychologists have studied the impact of outcome knowledge in many different scenarios. The body of literature they have created is useful information for the trial lawyer who wants to deploy techniques to confirm the validity of hindsight bias (the plaintiff), and the trial lawyer who must confront the challenge of “de-biasing” the same jury (the defendant). In catastrophic injury cases, this challenge is even greater for the defense. Every time a jury hears testimony about medical decision-making at the time of treatment, it is only natural to think—consciously or subconsciously— “Yes, but the patient died.” The real-time parties to the event did not have the benefit of hindsight, but the jury does. So do the expert witnesses who offer opinions that a standard of care deviation caused a preventable outcome.

The Plaintiff

A plaintiff’s attorney can use hindsight bias to her advantage by reinforcing inevitability of the outcome through testimony and visual evidence. Clinical facts—isolated vital signs, or seemingly random symptoms or complaints—can be transformed from what seemed at the time to be routine to something that is ominous in hindsight. A “creeping determinism” creates a momentum toward the reasonable conclusion that the outcome was not only inevitable; it was also foreseeable and preventable. A jury becomes “anchored” to hindsight bias, and a challenging illness or disease can suddenly seem simple; the unpredictable becomes predictable.

In radiology, for example, what was not seen on a film suddenly becomes apparent to everyone. An imperceptible change in the imaging study can later turn out to be the first sign of a tumor. When a second film is available months or even years later, the hindsight observer can look back at the first film and respond, “See, there it is!” Comparing the films side-by-side or, better yet, providing a computer animation to illustrate the images, turns the jury into experts who can see the abnormality for themselves. In hindsight, all the facts fit perfectly, like a jigsaw puzzle already put together.

The Defendant

For the defense lawyer, it is critical to address the dangers of hindsight bias early, and often. During voir dire, it can be useful to identify the problem and use examples, like The Sixth Sense, to warn the jury about the dangers of being anchored by 20/20 hindsight. Most jurors want to be fair. Unless it is identified, most will not recognize the challenge it is to overcome the bias inherent in outcome knowledge. Jurors should be asked individually to commit to following the law and to judge the facts from a foresight perspective, not a hindsight perspective. Those who seem incapable of doing so should be pressed hard to support a for-cause challenge, or a peremptory strike. Some people cannot set aside sympathy. Discussing the dangers of hindsight may reveal tendencies that are self-disqualifying.

The opening statement also creates an opportunity to de-bias a jury by describing the facts in a present tense narrative rather than in the past tense. If developed well during discovery, cross-examination of adverse experts can emphasize how the opinion witness knew the outcome before reviewing the record; for example, a radiologist knows there must be an abnormality in a litigation film when first asked by a lawyer to review it. Similarly, a pathologist expert witness likely knows a patient had cancer when first reviewing an evidentiary slide. The expert’s outcome knowledge suggests a lack of fairness in the review and criticism of decisions made at the time of the event at issue, before “the rest of the story” is known. (Some readers may be old enough to remember Paul Harvey—and some jurors may recall hearing his famous tag line and radio show of the same name as well.)

When engaged in the search for expert witnesses, it is often useful to set up a review without revealing the outcome. The pathology literature regarding blind reviews of pap smear slides is an excellent resource for how this process can come as close as possible to avoiding hindsight bias when judging whether the litigation slide was interpreted in a manner consistent with the standard of care. It may be possible to set up a similar process with radiology films and even clinical scenarios if the records can be organized in a fashion that does not reveal the outcome until the entire course of care has been reviewed.

Using photographs or illustrations can recreate the perspective of real-time actors in present tense circumstances, which will remind the jury that decisions made then that are now being questioned during trial were decisions made without the benefit of knowing the outcome. During closing argument, it is important to return to a narrative of the facts with a foresight perspective, and if available in your jurisdiction, to use jury instructions that emphasize how a jury should approach a review of facts fairly and consistently with the law.

As a final example, I suggest you look at the FedEx logo. I never saw the arrow in the logo until it was pointed out to me. Now, every time I look at it, I see the arrow. This is a simple but useful example of how your perception of an object, or in the case of a jury trial, judging the conduct of others, can be influenced by knowing what to look for or knowing the outcome.

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By Thomas A. Wiseman III

Thomas A. Wiseman III is a trial lawyer practicing in Nashville, Tennessee, with Wiseman Ashworth Law Group, PLC, where he primarily represents health care providers. He may be reached at [email protected].