When bad things happen, we tend to look back and believe the events were more likely to occur than they actually were. Hindsight bias in our legal system infects our jury system because jurors are asked to make judgments after already knowing the result. This bias is most serious and problematic in tort litigation. Jurors need to be made aware of hindsight bias and asked to consider the evidence at the time decisions were made without telling them to put themselves in the defendant’s shoes (which will draw an objection). One of the most helpful ways to combat hindsight bias is articulated by Baruch Fischhoff, who proposes looking backwards and making an honest and systematic explanation of how different outcomes are actually possible at the time.
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