Ever wonder “what if?” along with its companion, “if only?” Research indicates that jurors ask themselves “what if” ten times each hour. Counterfactual thinking is timeless in civil ligation – most especially when drafting a complaint, responding to a complaint, and preparing a jury. But what exactly is it?
Dr. Ken Broda-Bahm, in his blog post “Help Your Fact Finders Think About What Might Have Been” writes the following:
“Beyond just the act of entertaining a hypothetical, the logic of counterfactual thinking also suggests that there is a process to it. That process is captured in one of my favorite passages from the philosophy of language literature, and it sounds like nonsense until you think about it: “If kangaroos had no tails, they would topple over seems to me to mean something like this: in any possible state of affairs in which kangaroos have no tails, and which resembles our actual state of affairs as much as kangaroos having no tails permits it to, the kangaroos topple over” (Lewis, 1973),” Broda-Bahm writes. “In other words, when we compare reality to its alternative, it is most meaningful to use the “nearest possible world” in which that alternative exists. Instead of contemplating worlds where kangaroos levitate, ambulate on crutches, or adopt a radically different posture, we simply conceive of the kangaroo as we know it, only without the tail, and the poor creature topples over.”
Broda-Bahm goes on to explain that newer research indicates jurors tend to hold parties to extreme examples, such as having expected a defendant doctor to run every possible medical test even if it did not have nexus to the patient’s symptoms.
Rita Handrich writes the following in her post, “ Meaning and counterfactuals: “If only…” from The Jury Room blog:
“If only. It’s such a plaintive refrain and therein lies the appeal. They are effectively saying “this is such a sad story that it threatens my own sense of safety so much I need to create an alternative scenario that would have made it end much better“. And now we have research focusing on just how we use counterfactual thinking to create meaning.”
Handrich goes on to explain that this does not mean juries don’t listen to evidence, rather it reflects how jurors try to process disturbing information the evokes fear – for themselves and their own loved ones. “It’s about how we try to make sense of our world and protect ourselves from the knowledge that bad things happen–even to good people” Handrich adds.
Understanding the counterfactual thinking is a huge component of understating the psychology of juries – while some litigators are in a position to employ trial consultants, many are not.