Using Counterfactuals to Shift Jurors’ Hindsight Bias

In a coauthored article for Law360, business litigation partner John Ursu outlines how attorneys can use counterfactuals — not the facts themselves but a kind of negative space around those facts that consists of what could have been — as a trial tool to address hindsight bias in jurors and control the narrative in a way that supports clients.

Ursu defines counterfactuals, when to best use them and the three types: upward, neutral and downward. He explains that each type of counterfactual plays a role in maximizing, neutralizing or reversing hindsight bias. Ursu also emphasizes making the most of counterfactuals by keeping a few principles in mind before using them at trial, including prioritizing relevance and believability, building an advantageous timeline and embracing voir dire.

In conclusion, Ursu notes that attorneys who build counterfactuals into their cases from the beginning — and use them in front of the jury — do more than plead their case; they help jurors make wiser and more measured decisions, despite the perils of hindsight.

The full article is available for Law360 subscribers.