Presenting a live 90 ‐ minute webinar with interactive Q&A Hindsight Bias of Juries in Hindsight Bias of Juries in Personal Injury Actions Courtroom Strategies to Minimize Negative Effects of Hindsight Bias THURS DAY, AUGUS T 25, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Daniel Cooper, Esq., President, LitStrat, Inc. , New Y ork Christopher G. Campbell, Partner, DLA Piper , New Y ork The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Sacking the Sacking the Monday Morning Quarterback : _________________________________________ T Tackling Hindsight kli Hi d i ht Bias in Failure‐to‐Warn Cases Strafford Webinar August 25, 2011
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Speakers Daniel J. Cooper • President LitStrat Inc (New York NY) • President, LitStrat Inc. (New York, NY) • Jury consultant on hundreds of cases including intellectual property, antitrust, securities, employment, products liability, professional malpractice, fraud, and products liability, professional malpractice, fraud, and contract litigation • DanielCooperEsq@litstrat.com Christopher G. Campbell • Partner, DLA Piper (New York, NY) • Represents leading domestic and international pharmaceutical companies and other manufacturers in product liability cases in the U.S. and abroad. • Christopher.Campbell@dlapiper.com 7
Wh t I Hi d i ht Bi What Is Hindsight Bias? ? 8
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“Hi d i ht bi “Hindsight bias is the tendency i th t d to overestimate the probability of to overestimate the probability of a known outcome and the ability of decision makers to have f foreseen it.” foreseen it. 10 Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 62.
11 A Preview …
Hypothetical • Heather, wife and mother, has Type I diabetes • Tries a new daily injection medicine, BYTANOL, made by Lorell Pharmaceuticals y • After a few months, Heather begins periodically losing f feeling in her arms and legs li i h d l 12
13 To be continued …
Agenda 1. Background 2 2. Legal Framework Legal Framework 3. Hypothetical 4. Practice Points a a. Discovery Discovery b. Jury Selection c c. Trial Trial d. Jury Instructions 14
Agenda 1. Background 15
“Th h “The human being is never b i i impartial. He is biased by p y everything he has experienced, suffered and seen ” suffered, and seen. Harry Lipsig (1901‐1995) “The King of Torts” 16
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Thinking Habits “Social psychologists have found that bias exists as a natural part of social information processing and is present in everyone. They have found that assessing bias is usually found that assessing bias is usually a question of degree rather than whether it actually exists.” whether it actually exists. 18 Richard C. Waites, Courtroom Psychology and Trial Advocacy (2002), at 281.
All data points are not equal, and we don’t always pick the more valuable data. l k h l bl d A few examples: The disproportionate impact of the first The disproportionate impact of the first impression The value of a personal (anecdotal) experience The value of a personal (anecdotal) experience Diagnosis bias Hindsight bias Hindsight bias 19
Thinking Habits “When seeking out the values, g attitudes, and beliefs most influential in a decision maker’s story process, it can be helpful to keep in mind that p p these habits in our thinking are just that. Habits. They do not function by conscious will , nor did they get by conscious will , nor did they get attached to our prior life experiences because we deliberately decided to pin them there ” pin them there. 20 Eric Oliver, Facts Can’s Speak for Themselves (2006), at 33.
Influencing Thinking Habits “People cannot consciously control People cannot consciously control unconscious thinking habits, whether they are aware of them or not. So isolating unconsciously formed and maintained associations only to instruct a person or group to stop i t t t t using them, will fail in most cases and often make things worse ” often make things worse… 21 Eric Oliver, Facts Can’s Speak for Themselves (2006), at 53.
Thinking Habits g vs. Biased Thinking 22
Overestimating Foreseeability “[N]egligence liability hinges on [N]egligence liability hinges on foreseeability: the perceived likelihood of the harm ex ante, before the accident occurs. But jurors h id B j decide the case after the accident has already occurred. … The hindsight already occurred. … The hindsight bias predicts that jurors will overestimate the foreseeability of th the accident and tend to hold the id t d t d t h ld th injurer liable for not foreseeing that his or her conduct would lead to harm.” 23 Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 53.
The Hindsight Bias Effect “The hindsight bias is one of the The hindsight bias is one of the most consistently replicated effects in the cognitive effects in the cognitive psychology literature and has proved fairly resistant to proved fairly resistant to attempts to reduce its impact (debiasing) (debiasing) …. ” 24 Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 62‐64.
A Useful Tool for Jurors “The Legal rules may ask jurors to The Legal rules may ask jurors to gauge the reasonableness of the parties’ conduct from an ex ante rather than from an ex post perspective, but jurors have little motivation to do so. … The outcome ti ti t d Th t is what really happened, and taking it into account will help me to reach a into account will help me to reach a just decision about responsibility for what happened.” pp 25 Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 105
Influencing Hindsight Habits “Most people can’t forget the known p p g outcome of the events in a case story when going back and reviewing how those events first occurred. … “Nonetheless … Research has been done on whether teaching jurors to d h th t hi j t consciously try to see things as the parties saw them, ‘at the time’ can help alleviate the effect of the biased view of the story, and it can.” Eric Oliver, Facts Can’s Speak for Themselves (2006), at 80 (citing M.L. M.L. Pitera Pitera (Nee’ (Nee’ Stallard Stallard) Ph.D. and ) Ph.D. and D.L. Worthington, “Reducing the Hindsight Bias Utilizing Attorney Closing Arguments,” D.L. Worthington, “Reducing the Hindsight Bias Utilizing Attorney Closing Arguments,” Law and Law and Human Behavior Human Behavior 22 (1998) 671 22 (1998) 671‐ ‐683 683. 26
Agenda 1. Background 2. Legal Framework 27
Failure to Warn Claims The lack (or inadequacy) The lack (or inadequacy) of a warning renders the product defective. d t d f ti 28 See, e.g., Peterson v. B/W Controls, Inc. , 366 N.E.2d 144, 147 48 (Ill. 3d Dist. 1977).
Examples Chainsaws Sleep Aids 29
30 Pharmaceutical Cases
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