Why hindsight can damage foresight

This site explains some reasons as to why hindsight bias is important in overcoming initial judgments. Faulty decision making. Hindsight bias case study: Shooting D. This article is about the shooting of a woman in D. Why Hindsight bias can damage Foresight. This is an article of how hindsight can hinder our ability to learn and improve from our past forecasting errors. This is about a certain study that had to do with hindsight bias and why the bias had occurred.

It also explained some reasons as to how hindsight bias can be reduced or avoided. This article states how hindsight bias can occur in the sports category. How when some games don't turn out a certain way, people may say they knew the player or the coach should have done a certain thing that could have prevented it.

That Guy Won? This article is about the presidential election back in This is about how some people may claim they knew the results that had occurred, was going to occur. This website was created by Kaitlin Phillips.

To my knowledge, none of the photos violate any copyright laws. However, if there is a problem, you should contact me at kaitlin. Tip: To turn text into a link, highlight the text, then click on a page or file from the list above. Get a free wiki Try our free business product. To edit this page, request access to the workspace. Hindsight Bias Page history last edited by renita. To take a simple example: A case turns on whether a police officer had probable cause to search a vehicle, and the officer claims he was justified because when he approached the vehicle, it smelled to him like burnt marijuana.

Holt, No. But cf. United States v. Awolowo, No. Often, then, hindsight evidence will be most useful in evaluating witness credibility. Litigants may also use hindsight evidence to prove that a defendant possessed a certain mental state. Brennan, U. Close and some civil causes of action require litigants to prove a mental state. Close Although this is a less concrete inquiry, mental state is a question of fact and can be proved by any of the ordinary means of proving facts, including direct and circumstantial evidence, 96 96 United States v.

Rajaratnam, F. Close such as hindsight evidence. Hindsight evidence is probative of mental state when a culpable state of mind is more likely to produce the outcome observed than a blameless state of mind is. This may not always be the case. For an excellent marksman, yes, intent is a better explanation for shooting someone from a hundred feet away than recklessness or negligence. But for a terrible marksman, it may not be. In the above examples, hindsight evidence clearly bears on a fact of interest.

When jurors make a determination that has no causal relationship to an outcome—when with full knowledge of the surrounding facts they simply decide, in their lay judgment, what behavior is acceptable and what is unacceptable—hindsight evidence is irrelevant.

And given those facts, did the defendant exercise. Alaska Pac. Bancorporation, P. Howard, N. Scholars disagree about precisely what benchmark jurors should or do use to decide reasonableness. Privacy, Colum. Second, they decide whether his action was reasonable, given that risk. The second component—determining whether the defendant acted reasonably, given a particular likelihood of harm and the magnitude of that harm—is an exercise of pure judgment. Since it is not a factual question that relates to the probability of the outcome materializing, hindsight evidence is not logically relevant to answering it.

Sutliff, A. Close She establishes that he took half the money to a casino and placed it all on black at the roulette table. See Sartore v. Buder, P.

Close The risk of losing the money was Close and the outcome is independent of whether the fact-finder considers that risk reasonable or unreasonable.

By the same token, the normative judgment of prudence has no explanatory power concerning the result, since it assumes a known probability of harm. Observing loss or gain , then, provides no logical indication of what standard the fact-finder should set for acceptable conduct.

Some questions, however, do not fall so neatly on one side of the fact—judgment line. This analysis could be understood as a pure question of judgment. Once the jury determines the objective reality that surrounded the actor at the time of his decision, it must draw on its own lay judgment to decide what information a reasonable person would extract from those circumstances.

In this way, the jury operates as a standard-setter , and hindsight evidence cannot tell it what standard to set. Posner, Blinkered, New Republic Jan. Close —then jurors cannot set the standard for what information a reasonable actor would extract from the circumstances. In that case, hindsight evidence can be relevant.

A reasonable person makes more accurate assessments of her circumstances than an unreasonable person; a bad outcome, then, is probative of an unreasonable assessment of a low probability of harm, as opposed to a reasonable assessment. Whether an issue falls on the fact side or the judgment side will depend on both the substantive law and the specifics of the case. Judges will likely reason that jurors are fully equipped to decide reasonableness based on their everyday experience; See generally Pokora v.

Wabash Ry. Close to hold a defendant to a higher standard than jurors would otherwise apply is an inappropriate ex post adjustment of the reasonableness standard. Gypsum Co. Hand, J. Close The decision may be more difficult where the actor has some level of skill, knowledge, or experience that a lay juror or judge does not have, and the court must decide whether to let evidence speak to what a reasonable person with that trained mind would perceive.

But the decision is easy if the question is one on which courts already take evidence. In that case, courts have decided the question is one of fact, not pure judgment. If hindsight evidence bears on that determination, it is relevant. For example, parties often introduce evidence to determine whether a defendant exercised appropriate professional judgment.

The Restatement of Torts notes that adjudicators should account for superior skills or knowledge when determining if a person acted reasonably. Louisville L. Close This standard has been applied to doctors, lawyers, architects, engineers, auditors, psychiatrists, educators, and others. Close The range of acceptable practices, then, is determined by the members of the profession, See Claudia E.

Haupt, Professional Speech, Yale L. Close and litigants must educate lay jurors about professional norms and practices. Adams v. Close The professional standard of care can be understood as a proxy for factual circumstances of the decision—the knowledge accumulated by the profession and skills imparted to professionals. Relevance requires only the plausible assumption that actions acceptable to the profession are more likely to create good outcomes than actions that are unacceptable to members of the profession.

Hindsight evidence will typically be irrelevant , however, where the professional standard is a product of cost-benefit analysis. Close If the component of cost-benefit analysis at issue is the probability of the outcome materializing, then hindsight evidence will indeed bear on that probability. But if the question that the fact-finder must resolve is the appropriate balance of cost and benefit according to the profession, hindsight evidence has little to say because the view that strikes the best balance is not necessarily the one that produces higher odds of a good outcome.

The key here—inherent in Rule but rarely discussed when a party seeks to admit hindsight evidence See infra Part V discussing how courts have handled hindsight evidence in four different areas of law. Close —is that hindsight evidence must bear on an issue of fact. Each time a party seeks to admit hindsight evidence, the judge should ask herself what fact of consequence it makes more or less likely.

All relevant evidence is presumptively admissible. Close Under the Bayesian framework, the probative weight of a piece of evidence corresponds to its likelihood ratio; under the inference to the best explanation framework, evidence is probative to the extent that one proposed narrative better explains the evidence than another.

B discussing these theories of relevance and probative value. Probative weight differs from relevance, however, in that the value of a piece of evidence depends on what other evidence is available. United States, U. United States : Whereas a piece of evidence is relevant even if the fact it tends to prove is not in dispute, Id.

Close an assessment of probative value considers alternative forms of proof. If substitute pieces of evidence are more probative of the fact and less prejudicial and so will be admitted , the judge discounts the value of the evidence in light of the alternatives. Close In other words, the probative value of a piece of evidence is its marginal probative value, given the other available evidence.

Close Although Old Chief focuses on an evidentiary alternative that points in the same direction as the evidence in question, the reasoning applies as well to contradictory evidence: The weight of any piece of evidence should be evaluated in light of what we already know. Close Hindsight evidence, then, is more probative when the facts it tends to prove are not proven by better, alternative evidence.

Close It fills the gaps left by more conclusive evidence. This Part examines the probative value of hindsight evidence in three classes of cases.

First, it discusses how a fact-finder should understand the probative value of this evidence when the hindsight evidence arises in every case of a certain type, like harm in negligence cases. Finally, it addresses the relationship between hindsight evidence and the doctrine of res ipsa loquitur. The probative weight of hindsight evidence is less apparent where the evidence is an element of the cause of action—where it is present in every case and so does not distinguish between cases.

For example, every negligence case contains an alleged injury; otherwise the plaintiff could not establish standing or state a claim. Close A reasonable juror could understand injury to be highly probative of negligence. The rate of harm in the wake of negligent actions may be much, much higher than the rate of harm following non-negligent actions. Should this evidence of injury, present in every single negligence case, carry so much weight?

The hindsight evidence fails to make some cases stronger than others. But this hindsight evidence can yield insight into which cases get to court in the first place, so it is helpful information for the fact-finder. The rate of negligence among actions that are the subject of a negligence suit is , no doubt, greater than the rate of negligence among all actions. The same goes for every other action with a potential to cause harm: The rate of negligence among the subset where injury occurred is almost certainly higher than in the general population.

This suggestion conflicts with several scholars—including Judge Richard Posner and Professor Edward Cheng—who have suggested that the prior odds be fixed at a specific value that signifies unbiased decisionmaking. Judge Posner and Professor Cheng have maintained that, as a normative matter, unbiased adjudication requires that prior odds be set at one to one.

Juries are uniformly required and instructed to approach cases without a predisposition in favor of either side. Professor Richard Friedman has argued that one-to-one prior odds contravene the presumption of innocence in criminal cases because they are large relative to the odds a random person who has not been charged with the crime actually committed it.

Close He would set the prior odds at the likelihood a passerby on the street had committed a crime of the type charged around the time of the crime. The idea of fixed, even prior odds has normative appeal: It resonates with the ideal of equality before the law and the image of the scales of justice that tilt only with evidence. Abraham, Self-Proving Causation, 99 Va.

Close But for purposes of rational truthseeking, beginning a case with artificially even odds makes little sense. Close the jury must be free to account for all information that will help them impose an accurate judgment.

That includes their lay understanding of base rates of wrongdoing and base rates of wrongdoing given outcome information. The only way to ascertain it is to survey prior verdicts, which jurors will not do. Allowing the jury to rationally incorporate inevitable hindsight evidence into its prior odds will not work if a selection process artificially alters this base rate. This is the case, for example, in challenges to patent validity based on obviousness.

Of all the conceivable inventions in the world, inventions that have actually or constructively been reduced to practice are almost certainly more likely to be obvious than inventions that have not been invented, since people are more likely to devise things that are easy to invent.

And in every patent infringement case, the plaintiff has actually invented something. If any invention at all could be patented, a rational juror would take the fact of invention into account. However, the Patent and Trademark Office provides a screening function, issuing a patent only if it determines that the invention was not obvious in light of the prior art. See U. Graham v. John Deere Co. Patent examiners themselves, however, should incorporate the fact of invention into their prior odds that any invention is obvious.

Inventors and their employers may of course forgo filing patent applications on clearly obvious inventions in order to avoid wasting time and money. But the group of inventions that comes before a patent examiner is still likely to be disproportionately obvious, relative to all possible inventions.

Thus far I have discussed the probative weight of binary hindsight evidence: either there was harm or there was not, the investment did well or it did badly, the search uncovered drugs or it did not. But hindsight evidence is not limited to these dichotomies. Two features of hindsight evidence—magnitude and specific type of outcome—may bear on its probative weight. First, the magnitude of harm may be probative.

Cases with relatively worse outcomes are typically more likely to involve culpable conduct than cases with relatively less bad outcomes. Close This conclusion follows from the simple idea that acceptable conduct tends to lead to better outcomes than unacceptable conduct, even looking only at cases where the outcome was bad.

But competent management is less likely to lead to large losses. And even negligent management may be very unlikely to cause complete loss; instead, complete loss may indicate that management was fraudulent.

So even though the person suing his or her investment adviser must always prove a loss, See, e. Hutton Grp. Shearson Lehman Hutton, Inc. Close the magnitude of loss may be additionally probative of malfeasance. In addition, certain types of negative outcomes—ways that the bad result came about and the sorts of negative results caused—can be more indicative of culpability than others. When culpable behavior leads to a certain type of result at a much higher rate than acceptable behavior, that type of result is more probative of culpability than a different type that arises from acceptable and unacceptable behavior comparably.

The outcome more probative of culpability may be more severe than a qualitatively different outcome less probative of culpability—but it may not be. For example, every medical malpractice case involves injury to the plaintiff. Close than, say, death from a heart attack following surgery. Thus the potentially less severe outcome is more probative of malpractice. The observation that certain types of outcomes may be much more probative of unacceptable action than other types underlies the doctrine of res ipsa loquitur.

This year-old doctrine, See Byrne v. Boadle Eng. Close It allows an inference of negligence where the plaintiff has neither alleged nor proven specific negligence. Yusuf, 51 Cal. Arnspiger, S. Close when a car runs off an empty road, See, e. Eaton, A. Close and when a vehicle hits escaped livestock on a public street.

Close A jury may find the doctor, driver, or livestock owner liable without knowing anything more about the events in question. The probative value of an outcome, in a negligence case, is the probability of observing that outcome given negligent behavior divided by the probability of the outcome given non-negligent behavior.

Close From an inference to the best explanation perspective, the doctrine permits a finding for the plaintiff when any explanation of the hindsight evidence favoring the defendant is sufficiently implausible, relative to explanations favoring the plaintiff. Richard W. Hindsight evidence cannot substitute for this feature of the doctrine. But the doctrine did not originate with this understanding in mind, and the true origins of res ipsa loquitur suggest another benefit of introducing hindsight evidence.

Close By putting pressure on the defendant to produce this evidence, courts improved accuracy. Thus, in earlier cases, courts would apply res ipsa only if there was no other evidence bearing on the events in question available to the plaintiff. Close In the contemporary era of ample discovery, most courts applying the doctrine do not require the defendant to have superior access to information.

Still, the logic of the earlier era holds: Hindsight evidence will tend to prompt the production of better evidence. If the defendant has access to evidence bearing on her liability and the plaintiff does not, and if the plaintiff introduces hindsight evidence in his favor, the defendant will be prompted to produce evidence exonerating herself.

Conversely, where the party introducing hindsight evidence should have better evidence, the fact-finder will consider his failure to introduce better evidence when evaluating the strength of his case. Close A plaintiff with better evidence will be reluctant to rely on hindsight evidence alone. In addition to these benefits, however, hindsight evidence has a number of drawbacks that create a risk of unfair prejudice. The next Part explores the trouble with hindsight evidence.

With hindsight evidence comes the potential for hindsight bias. But the potential for bias is not, in and of itself, a sufficient reason for exclusion. Instead, the Federal Rules of Evidence recognize that juries may overvalue certain pieces of evidence and so the Rules provide a rule for weighing probative value against prejudice.

Close This Part first reviews the literature on hindsight bias and its cousin, outcome bias, then discusses the best methods available for debiasing the fact-finder in different classes of cases, and finally addresses how judges should think about probative value and prejudice when deciding whether to admit hindsight evidence under Rule Experimental Psychol.

Hindsight bias comes in three varieties. Close Primary hindsight bias occurs when learning of an outcome increases its perceived objective ex ante likelihood of materializing. Close Secondary hindsight bias manifests when a person learns of an outcome and then unknowingly overestimates the probability she herself would have assigned to that outcome ex ante. Close Tertiary hindsight bias arises when a person learns of an outcome and adjusts her assessment of the foreseeability of that outcome, so she faults others for failing to predict it.

Close Secondary bias is always and everywhere irrational: The person inaccurately assesses what she would have known. Close But as Part II demonstrated, primary bias has a rational hindsight-evidence counterpart: Information that an outcome materialized can be probative of objective ex ante likelihood of the outcome.

Close Tertiary bias does as well: When a fact-finder has incomplete factual information about the information available to a decisionmaker ex ante, the outcome of that decision is probative of what a reasonable person would have foreseen. But see id. Indeed, Kelman and his co-authors find that when people can calculate ex ante probability easily, they do not experience hindsight bias upon learning of an outcome.

See id. Close However, if outcome information causes a person to overestimate ex ante likelihood or foreseeability, then the person experiences true hindsight bias. Close is closely related to hindsight bias. But whereas hindsight bias operates through the adjustment of probability assessments, outcome bias operates independent of probabilities. Even when a person knows how likely or foreseeable an outcome was ex ante, outcome bias may cause her to think that a decision with a bad outcome was a bad decision.

Peters, Jr. Close To the extent a person is tasked with judging a decision from the ex ante perspective, outcome bias is always an undesirable force: It is irrelevant to factual questions and instead changes the legally acceptable standard of behavior based on its consequences. Close the fact-finder has fallen victim to outcome bias. Although outcome bias and hindsight bias are different, they frequently work together, and many studies do not distinguish between them.

In a series of classic studies, researchers have found that lay legal decisionmakers experience hindsight bias and outcome bias. Close whether a railroad was reckless when it continued to operate on a track that had been declared hazardous, See Hastie et al.

Close whether a therapist took appropriate efforts to prevent a dangerous psychiatric patient from harming others, See Susan J. Close and whether an invention was an obvious solution to a technical problem.

Close This high-end estimate bears out in mock-juror research on relatively close cases. In two studies of close cases, about a third of the subjects shifted with hindsight, changing which side had the majority vote. When jurors deliberate, the side with the majority on the first ballot typically prevails. Harry Kalven, Jr. Close In cases where mock jurors largely agree in foresight, however, outcome information had much less of an effect.

Close The bias is unlikely to create close cases out of very easy cases. Scholars have investigated whether judicial expertise serves to mitigate the hindsight bias. Results have been mixed. The power trio of Professor Chris Guthrie, Professor Jeffrey Rachlinski, and Magistrate Judge Andrew Wistrich has conducted a series of studies examining heuristics and biases in judicial decisionmaking.

Close By contrast, their study of state and federal judges found subjects were just as likely to find probable cause for a police search in foresight as in hindsight. Empirical Legal Stud. Close In addition, when judges participated in the study referenced above with the potentially reckless railroad, the difference between hindsight and foresight was not statistically significant. Close These studies together provide some reason to believe that judges are less susceptible to the hindsight bias—or are better able to overcome it—than lay jurors are.

They do not suggest, however, that judges are completely immune. Judges are only human, after all. Bias invites debiasing.

For nearly forty years, researchers have tried to quash the effects of the hindsight bias and foster rational decisionmaking. This section discusses three techniques that have emerged as most promising for mitigating hindsight bias at trial.

First, a consider-the-opposite strategy, in which subjects are asked to think of and explain how alternative outcomes could have occurred. Third, bifurcation, whereby jurors decide on liability before hearing evidence of damages. Close Implementing the consider-the-opposite and consequence-severity strategies may not require special instructions or procedures: Attorney argument naturally encourages jurors to consider the opposite, and jurors are aware of the serious consequences of their actions.

When judges consider the prejudicial effect of hindsight evidence for purposes of determining admissibility, then, they should account for this debiasing. Bifurcation, on the other hand, is most suitable when the hindsight evidence is inadmissible as hindsight evidence but is admitted for another purpose. Consider the Opposite.

Close and outcome information alone is insufficient to elicit hindsight bias without a potential causal antecedent. Anderson, D. The consider-the-opposite strategy capitalizes on this cognitive, causal understanding of the bias by forcing decisionmakers to consider plausible alternative scenarios in which the same facts resulted in different outcomes. Close However, the most successful implementations of this strategy have not simply encouraged decisionmakers to think of alternatives but instead actually required them to write down alternative scenarios or come up with probability estimates for given alternatives.

Eisenberg, T. The predictability of punitive damages. Journal of Legal Studies, 26, — Fischhoff, B. Hastie, R. Algebraic models of juror decision processes. Hastie Ed. Cambridge: Cambridge University Press. A study of juror and jury judgments in civil cases: Deciding liability for punitive damages.

Law and Human Behavior, 22, — What juries can't do well: The jury's performance as a risk manager. Arizona Law Review, 40, — Hawkins, S. Hindsight: Biased judgments of past events after the outcomes are known. Hoch, S. Outcome feedback: Hindsight and information.

Jardel Co. Hughes, Del. Kagehiro, D. Hindsight bias and third-party consent to warrantless police searches. Law and Human Behavior, 15, — Kahneman, D. Shared outrage and erratic awards: The psychology of punitive damages. Journal of Risk and Uncertainty, 16, 47— Kamin, K. Law and Human Behavior, 19, 89— Keeton, W.

Prosser and Keeton on the law of torts 5th ed. Paul, MN: West. Kelman, M. Decomposing hindsight bias. Journal of Risk and Uncertainty, 16, — Kerr, N.

Bias in judgment: Comparing individuals and groups. Psychological Review, , — LaBine, S. Determinations of negligence and the hindsight bias.

Law and Human Behavior, 20, — Petition of Kinsman Transit Co. Rachlinski, J. A positive psychological theory of judging in hindsight.

Hindsight, by definition, is always after the fact. The final goal in promoting change is achieving the state of self-awareness; namely, foresight. Change may be best achieved when someone can look over the horizon and foresee an opportunity or situation where they can employ their collection of hindsights and insights and function in a way compatible with their therapeutic goals. This might be the operational definition of meaningful change.

Let me illustrate with a brief client example. During the hindsight phase of her treatment, reports of regret at how she behaved between sessions dominated the conversations as we tried to understand and modify her behavior.