November 10, 2011

Help Your Fact Finders Think About What Might Have Been

By Dr. Ken Broda-Bahm:

I’ve written about presidential aspirant Herman Cain, and his effective use of the “9-9-9” mnemonic, but more recently, Mr. Cain might be having more troubling memories.  Specifically, he might be thinking, “If only I had an iron clad non disclosure agreement in my sexual harassment settlements….”  While Mr. Cain’s predicament is unique, what is common to the psychology of human regret is this kind of “if only” thinking.  We evaluate our current path by comparing it to paths not taken.  The same phenomenon describes the ways jurors assess parties and think about liability and cause:  “If only the defendant would have disclosed the test results,” or “If only the plaintiff would have fully followed the product instructions.”    

In logic, this is called “counterfactual thinking,” or the act of considering what might have been in order to evaluate what is.  That evaluation is also entailed in “but for” reasoning that lies at the heart of many of the judgments that jurors and other fact finders are asked to make.  I’ve written in the past about counterfactual argument by jurors, and included advice about influencing what “paths not taken” jurors are most apt to consider, and suggestions on using counterfactual thinking to combat hindsight bias.  New research (Teigen, Kanten, & Terum, 2011), however, sheds some additional light on the kind of alternatives that individuals are likely to generate.  This post takes a closer look at the implications for legal persuaders, providing a few ideas for keeping jurors and other fact finders on a preferred “what if” path.

What is Counterfactual Thinking? 

Though the name may not be familiar, counterfactual thinking is not some exotic form of reasoning.  In our legal system, in fact, it is extraordinarily common.  Based on my own analysis of transcribed juror deliberations (Broda-Bahm, 2000), a jury tends to engage in “what if” thinking, on average, ten times per hour.

Beyond just the act of entertaining a hypothetical, the logic of counterfactual thinking also suggests that there is a process to it.  That process is captured in one of my favorite passages from the philosophy of language literature, and it sounds like nonsense until you think about it:  “If kangaroos had no tails, they would topple over seems to me to mean something like this:  in any possible state of affairs in which kangaroos have no tails, and which resembles our actual state of affairs as much as kangaroos having no tails permits it to, the kangaroos topple over” (Lewis, 1973).  In other words, when we compare reality to its alternative, it is most meaningful to use the “nearest possible world” in which that alternative exists.  Instead of contemplating worlds where kangaroos levitate, ambulate on crutches, or adopt a radically different posture, we simply conceive of the kangaroo as we know it, only without the tail, and the poor creature topples over.

That is the logical way to think about counterfactuals.  But the question is whether jurors tend to follow that logical route.  According to a new study, they don’t.

What Does the New Research Say?

In a study published in the journal Thinking and Reasoning, a group of Norwegian researchers (Teigen, Kanten, & Terum, 2011) tested whether people tend to come up with close counterfactuals (a “what if” that differs minimally from what actually happened) or more extreme counterfactuals (a “what if” that is a greater departure from, or even a polar opposite of what actually happened).  What they found is that when asked to generate counterfactuals on their own (by describing an incident in their life, large or small, that could have turned out otherwise), participants tended to focus on more extreme departures from what happened.

The thinking is that, when asked to consider the alternatives to something that has happened, we are drawn to prototypes.  In other words, we don’t think of a situation where it was a bit better or a bit worse, we tend to conceive of the full disaster or the complete triumph.  To use an example from the article, when an icicle falls from a high roof and lands near to you (the researchers are Norwegian, remember) we tend to think, “wow, that could have killed me,” instead of thinking “It could have landed a little closer,” or “It could have landed a little farther away.”

And, What Does This All Mean for Jurors and Other Fact Finders? 

For jurors, this process of exaggerating the “what if…” could explain the tendency we see in some to hold parties to extreme standards:  for example, the defendant doctor who is faulted for not performing every test imaginable, or the injured plaintiff who should have taken every conceivable precaution, even those that would only make sense in hindsight.  Those can be appealing counterfactuals for jurors because they present an opposite alternative to what actually happened.

But that kind of thinking doesn’t necessarily make sense for legal decision making, and isn’t necessarily strategic for your case.  While the art of arguing counterfactuals deserves a longer treatment (which I’ve included here), here are a few specific pointers on avoiding a bias for the extreme alternative as shown in this study:

1.) Take Control of the Alternatives Considered.  Attorneys who prefer to just argue the facts of what did happen, and avoid the speculation on what could have happened, are in effect leaving the door wide open for jurors to focus on inappropriate or unfair alternatives.  Counterfactuals are often legally appropriate (e.g., jurors have to think about whether the injury would have been avoided but for the defendant’s conduct), so it is up to the advocate to sketch out what that “but for” world should look like.

2.) Use a Decision Tree to Graphically Represent the Most Reasonable Alternatives.  Simply showing your judge or jury the alternative courses of action that could have been taken can help frame or highlight those that help you make your best case.  For instance, on a board or a screen, you could center the action that did occur (e.g., product was approved without additional testing), and then identify other actions that could have been taken (product not approved, or additional tests or modifications could have been proposed) with the alternatives you want to favor placed closer in to the center.

3.) Caution Your Fact Finder Against a Preference for the Extreme.  Unless it helps your case to use the most extreme alternative (and it might), you should speak concretely about what makes for the most comparable alternative:  What is closest?  What is most likely?  What nearly happened, but didn’t?  Contrast those reasonable alternatives with the more extreme alternatives that may be intuitive, but ultimately make less sense.  For example, “When you look at Doctor Smith’s actions, you might be tempted to contrast it with its opposite:  Instead of diagnosing and treating, he waited and ordered every test imaginable.  But that is just not a reasonable alternative:  That is not what would have happened.

Ultimately, you want to devote serious thought to how jurors will fill in the blanks.  If, on their own, they come up with an alternative course of action that puts your client in a bad light, then you might be the one with regrets based on what might have been.


Related Posts:

____________________ Teigen, Karl Halvor; Kanten, Alf Børre; Terum, Jens Andreas (2011). Going to the other extreme: Counterfactual thinking leads to polarised judgements Thinking & Reasoning, 17 (1), 1-29 : 10.1080/13546783.2010.537491


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