Negative attribution bias is a fancy word for what I call super-jurors, people who make themselves feel safe in a dangerous world by thinking bad things won’t happen to them because they are careful and protect themselves. When people with that mindset hear of others being hurt, they tend to blame the injured parties for not protecting themselves. We have to be aware of this kind of bias and have systems in place to deal with it. The affirmative defense of comparative negligence thrives on jurors who think that way.
Here is an example from many years ago when I first confronted the phenomenon. I did a focus group on a case where our client took her elderly mother to the ER for chest pain. After 6 hours, the ER doctor sent her home at 1:00 AM. By then her chest pain was gone. He diagnosed indigestion. He did not do a cardiac cath nor stress test. At 8:00 AM the next morning our client checked on her mother before going to work and found her dead in bed. An autopsy proved she died from a heart attack.
We did a focus group and several members fixated on how they would never have let the doctor discharge their parent or would have driven to another ER for a second opinion. I remember thinking to myself, you would have been relieved to get good news after spending hours in the ER and would have gone straight home at that late hour. That classic presentation of negative attribution bias was particularly troubling because the defense filed an affirmative defense alleging the mother’s chest pain must have come back after discharge and the plaintiff should have returned to the ER per discharge instructions.
Another example I’ve seen in focus groups are cases where the defense is trying to blame our client for not taking different evasive action when the defendant cut off their right of way. Super-jurors say they would have hit their brakes sooner or veered left rather than right.
The process I am about lay out will provide a clear path for those who have the bias to not apply their perceived extraordinary abilities of self-protection when judging others who don’t have those same special gifts.
The Process
Point out that the defendant’s attempt to blame the plaintiff is called an “affirmative defense”, which means the defense has the burden of proof. It is not enough for them to prove Ms. Jones could have done something different. It is not enough to prove others would have done something different. It is only enough if they prove Ms. Jones did something wrong, that she did something unreasonable, under the circumstances, at the time.
I say “under the circumstances at the time” because, otherwise, we are doing something called Monday morning quarterbacking, which is second guessing after knowing the outcome, and that is not a fair way to judge things as they unfold in real-time.
Different people react differently to circumstances. The standard is not perfection. There are a few people who have extraordinary abilities in how they react to dangerous circumstances created by others, they’re just wired that way. That does not mean the way others react is unreasonable. On these facts, based on these circumstances, as they occurred real-time, Ms. Jones did nothing wrong!
Why the Process Works
This framework allows those with negative attribution bias to feel special and still be fair to our clients. It also has the authority of law behind it. The jury will be instructed the defendant has the burden to prove Ms. Jones failed to use reasonable care, which equals doing something unreasonable, something wrong.
Med Mal Application
Those who do med mal may worry that this strategy will validate the defense’s favorite analogy of Monday morning quarterbacking. The fact is you’re not going to stop them from using it, so you might as well beat them to the punch. Besides, we don’t second guess based upon bad outcomes, our cases are based on defendants doing something wrong real-time.