For The Defense, October 2010 - DRI Today

your first opportunities to develop witnesstestimony that could mitigate hindsightbias when presented to a jury. In preparingdefense witnesses, it is important tocontinue to stress the importance of historicalcontext. For instance, prepare witnessesto testify in a way that will put theirdecisions and actions in the appropriatehistorical context. Prepare witnesses toask for clarification if a plaintiff’s attorneyasks questions that do not refer to a specifictime period by asking that attorneybefore responding, “What time period areyou asking about?”, or “As of what time?”,which will prevent the plaintiff’s attorneyfrom muddling history and will help keepthe record clear.You should consider engaging in redirectexaminations of company witnesses. Thisis a proactive step through which you canbegin to lay the groundwork for a defendant’sstory. Even a short redirect examinationcan develop testimony that humanizesa witness—something a plaintiffs’ counselwill have no interest in doing—and hopefullywill show that the witness is a realhuman being whose decisions or actionswere based on the best available informationat the time.Affirmative discovery can also advancethe defendant’s story. If you can demonstratethat a plaintiff would not have heededan additional warning, even if furnished,that is another way to tackle hindsight bias.After experiencing a side effect, generallya plaintiff will claim in hindsight that heor she would not have taken a drug if heor she had been warned. The way to defeatthat testimony is to bring up other situationsin which a plaintiff ignored warningson other products, such as smoking, takingother medications with similar warnings,or using other potentially dangerousproducts. If jurors hear that a plaintiff hasa history of ignoring warnings, then theymay approach a plaintiff’s assertions withskepticism.Use Jury Selection to Identify JurorsSusceptible to Hindsight BiasJury selection is always critical to a gooddefense. When it comes to overcominghindsight bias, the jury selection processpresents an important opportunity on atleast two fronts. The first is that you canuse the selection process to begin teachingjurors the value and importance of overcominghindsight bias. Lay the issue onthe table. The saying “hindsight is 20/20”is common, and most jurors will recognizehow hindsight bias enters their dailylives. Use an example of hindsight biasto bring the issue home. From the verybeginning, tell jurors that their responsibilityas fact finders requires viewing thefacts in the appropriate historical context.If the standard is whether the manufacturer“knew or should have known” abouta particular harm, then jurors must understandat the outset that the question thatthey will decide is tied to a particular pointin time and that the benefit of hindsightshould not sway their verdict. It is difficultfor jurors to talk about abstract concepts,values, or hypotheticals. It is easier to conductvoir dire by referring to jurors’ personalexperiences. Consider questions thatallow jurors to talk with you about theirpersonal experiences of assessing past conduct.You will note eliminate hindsight biasby instruction, lecture, or argument. Makingjurors aware of hindsight bias and howit can handicap them in their efforts toreach a correct result is a big enough challengeduring voir dire. Use jurors’ personalexperiences to elicit awareness of hindsightbias, and recognize that some jurors cannotrealistically practice impartiality, regardlessof your efforts to educate them.That means that the other importantaspect of jury selection is to identify thosejurors who are unwilling or unable to setaside their biases, including hindsight bias,to render a fair and impartial verdict. Thereare a variety of techniques to gauge a juror’ssusceptibility to hindsight bias. Decidingwhich techniques you will use will dependon the facts of a case. Approaching theproblem directly it is not particularly useful.Asking jurors directly whether theywill be able to overcome hindsight biasand decide the case based on the informationavailable at the relevant time typicallywill elicit politically correct answers aboutfollowing the judge’s instructions. Themore reliable window into bias, includinghindsight bias, is to explore relevant personalexperiences. So developing voir direquestions that explore jurors’ experiencesinvolving hindsight bias can help you tointroduce questions about hindsight bias.But to be meaningful, you will need to prepareto follow up and probe. Ask a jurorhow he or she felt about that event. Did itresult in a fair decision or an unfair decision?What did the juror learn from theexperience, would he or she approach thesituation differently today, and why, or, ifhe or she would not change a thing, whynot? For example, you might ask, “Haveyou ever made a decision that, based onIt is important to insistthat the instructions includelanguage to mitigatepotential hindsight bias.information you learned later, you wishyou could take back?” Jurors who havebeen hurt by hindsight bias are more likelyto reject it than jurors who have not beenaffected by it. If you chose to use some ofyour voir dire time on hindsight bias, probedeeply enough to know whether and how ithas affected jurors in their own lives in realand concrete terms—not as a mere theoryor hypothetical.Tackle Hindsight Bias Head-OnDuring Your TrialTrial is the time to tell the story of thecase and tackle hindsight bias head-on.An opening statement should build onthe discussion of hindsight bias from juryselection but now introduce the facts of acase. As noted, the key here is to tell thestory so that jurors are transported backin time and can view the facts through theeyes of company scientists, safety officers,and executives who will testify at the trial,as well as view the plaintiff’s conduct andthe plaintiff’s case through the same lens.During the part of the trial when the plaintiff’sattorney makes the plaintiff’s case,use cross- examination when possible tochallenge hindsight bias. For instance, if aplaintiff’s experts rely on some recent datato support their opinions, in your crossexaminationpoint out that the data wasnot available to company scientists at thetime in question.Hindsight Bias, continued on page 86For The Defense n October 2010 n 19