State of the Art: Turning a Shield Into a Sword
Why is our blog subtitled "State of the Art"? For several reasons; chief among which is our fascination with the effect on mass tort litigation of our error-inducing mental shortcut responsible for what is called hindsight bias.
It turns out that mass tort defendants' claims of "I didn't know" or "I couldn't possibly have known" not only tend to fail but tend to backfire. Plaintiffs' counsel have learned how to exploit our tendency to Monday morning quarterback other peoples' decisions and now hindsight bias has become a problem in every mass tort case. Unwary defendants risk having "I couldn't possibly have known" turned into a belief that "they had to have known and thus their failure to act is evidence of gross neglect."
What is the hindsight bias? Here's an excellent introduction.
