11/21/2005
www.EPS-Consulting.com
4
Hindsight Bias
•Jurors tend to treat low a probability event that actually occurs as much more likely than it is.
–Jurors will believe it to have been more easily anticipated and will assign greater urgency to guarding against it.
–Jurors often conclude that parties to a contract should have anticipated every contingency.
–Jurors tend to blame “the big guy, with all his fancy, high-priced lawyers.”
•A second order effect is that the more bizarre the circumstances, the more jurors tend to believe that it must have been “somebody’s fault.”
•One strategy for overcoming hindsight bias is to argue by analogy to something familiar to jurors.