Dateline: November, 2008, Issue 1

Can closing argument reduce jurors' use of "20-20 hindsight"?

Jurors often are presented with some negative outcome (e.g., an injured plaintiff), and are asked to assess whether that outcome was foreseeable or preventable. Jurors frequently are unable to ignore the outcome information when reaching verdicts. Jurors "Monday-morning quarterback" and exhibit "20-20 hindsight."

This "hindsight bias" is especially likely to produce liability judgments in favor of the plaintiff, as jurors conclude that the defendant should have known that the negative outcome would occur. Knowing about an accident makes the accident more foreseeable, a defendant more reckless, and punitive damages more likely.

Stallard and Worthington (1998) tested the effectiveness of an "inoculation" strategy in closing argument that was designed to reduce the effects of the hindsight bias among civil jurors. All jurors heard a closing argument. Half of the jurors also were told of the plaintiff's attempts to make them into "Monday-morning quarterbacks" and ended with an appeal to jurors not to use hindsight when judging the defendant by reminding them not to second-guess the defendant's decisions.

The inoculation strategy was partially effective. Jurors who were told of the plaintiff's attempts to make them into "Monday-morning quarterbacks" and who were encouraged not to use hindsight were less likely to find for the plaintiff than were jurors who did not hear these appeals. However, despite this effectiveness, the inoculation strategy was only partially successful, as it was unable to completely eliminate the hindsight bias.

Alerting jurors to the plaintiff's desire to have them be "Monday-morning quarterbacks" and encouraging them not to second-guess decisions reduces, but does not eliminate, the hindsight bias jurors evidence when making liability judgments.

Source Stallard, M. J., & Worthington, D. L. (1998). Reducing the hindsight bias utilizing attorney closing arguments. Law and Human Behavior, 22, pp. 671-683.