May 27, 2013

Keep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully:


Concussion - Football -

Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  

Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedi with new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more.

Drawing from our own national study conducted late last year, this post will hit upon public perceptions of concussion risk and impact, while also sharing a few tips for keeping jurors from applying current attitudes and knowledge to decisions and technologies deployed in the past.
Perceptions of Concussion Injury

Our 2012 National Juror Survey focused on potential jurors’ perceptions of concussion injuries and concussion litigation, finding that most surveyed in 2012 saw a severe concussion as likely to cause future health problems, 32 percent reporting that high school athletes are most vulnerable to health problems related to concussion and 30 percent reporting that professional athletes are most vulnerable.

Concussion health problems Graph


Persuasion Strategies National Juror Survey (2012)
(Click to see full-sized chart)

The wave of concussion litigation highlights the influence of hindsight bias, a critical aspect of litigation decision making we have addressed in previous posts here and here. The authors of a recent study of hindsight bias research (Roese & Vohs, 2012) put it clearly: “Consequences of hindsight bias include myopic attention to a single causal understanding of the past (to the neglect of other reasonable explanations), as well as general overconfidence in the certainty of one’s judgments.”ii When jurors, judges and arbitrators – human beings all – make decisions about the foreseeability of past events (i.e. should leagues and coaches and organizations have known that players could be harmed by not sitting out long enough after concussion?), hindsight bias can play a central role. Does the fact that we now believe that concussion can cause long-term health issues mean that it was widely known in the 1980s,1990s, or even 2000s? Of course not. Does the fact that we now know a great deal about how concussions affect the human brain mean we should have known years ago? Again, no. But jurors are now being asked more than ever to evaluate litigants’ past knowledge and understanding of concussions while living in a present environment where news, reports, awareness and understanding is at an all-time high and (rightfully so) increasing every day.
Address Hindsight Bias
More and more knowledge about concussion and its consequences can only help prevent future injuries. Looking backward in time, however, requires attention to understanding what we knew and what we did not to avoid our own cognitive limitations. Researchers suggest “that considering the opposite may be an effective way to get around our cognitive fault, at least in some cases. When we are encouraged to consider and explain how outcomes that didn’t happen could have happened, we counteract our usual inclination to throw out information that doesn’t fit with our narrative. As a result, we may be able to reach a more nuanced perspective of the causal chain of events.”iii Here are some ways to keep jurors focused.
Keep Jurors in the Here and Now
Model in voir dire how you must make do with only what you know in that moment about prospective jurors, about the judge, about the testimony, and that the future may turn out differently than we all expect. Ask jurors about their perceptions of that reality. Ask them about Monday Morning Quarterbacking and emphasize that the remedies include living in the present and relying only on what you know at a given moment.

Use time-restricted visuals (including but not limited to timelines) to focus jurors on the risk information that was known at the time decisions were made, and encourage jurors to see the evidence as the defendant perceived it in the real-world.

 Level the Playing Field

Openly endorse your opponent at trial. Make the strategic decision not to aggressively attack their credibility. Instead, make sure jurors see them as active consumers of medical care and medical knowledge, with the power and ability to know much more than the average juror about the health risks of their sport.
Related Posts: 
i See for instance the Testimony of Jeffrey Kutcher, M.D. on “Legal Issues Relating to Football Head Injuries, Part II,”  before the United States House of Representatives Committee on the Judiciary.  January 4, 2010.  
Illustration by:  Pam Miller of Persuasion Strategies


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