Countering Outcome-Driven Bias

Although we conduct jury research for a wide variety of cases and topics, one mainstay of any trial is the tendency for jurors to view the case facts with the benefit of hindsight. However, just because this juror tendency is a factor in nearly every trial doesn’t mean it’s insurmountable.

In many cases – whether a delay in diagnosis, sexual assault or personal injury – being seated at a trial automatically puts jurors in a position of looking backward from the outcome to evaluate the two opposing stories.  This means they are often looking for indicators that the issue was foreseeable or avoidable – a position that makes it easy for jurors, driven by hindsight, to find examples of red flags or “missed opportunities” to prevent the outcome.

We have found that one way to counteract this tendency is to put jurors in defendants’ shoes with visuals, testimony and timelines.  If a timeline is presented (which we nearly always recommend regardless of the type of case), it can be helpful to place another board on top of it, and slide it to the right as you walk the jury through the events in question.  This helps to establish what the defendants (whether caregivers, supervisors or corporate leaders) knew and when, as opposed to having jurors stare at the totality of the timeline from the outset, where they could be tempted to start at the end and work their way back to point out “warning signs.”

Like turning off the basketball game in the third quarter of a blowout, only to read the next day that the underdog team made an incredible comeback, it’s helpful to remind trial jurors throughout trial that they have the unique advantage of knowing the end of the story before they’ve read the first chapter.  During exit interviews and mock trials, we have found that this kind of language and similar analogies resonate with defense-minded jurors, and serve as quick, common-sense rebuttals to jurors inclined to use hindsight as a guide. 

It’s all about perspective, and it will always benefit you to provide jurors with an alternative lens through which to view all case facts.  If you would like to discuss how we can help you present your perspective in the best light to jurors, please contact Senior Vice President Claire Luna at cluna@juryimpact.net.