The term “hindsight bias” is defined as “the tendency, after an event has occurred, to overestimate the extent to which the outcome could have been foreseen.” A new trend in Illinois is for litigants to attempt to introduce evidence of hindsight bias through opinion testimony by experts in human factors or psychology. These opinions have been commonly offered by defendants in negligence cases to argue that jurors should not judge their conduct with the benefit of hindsight information learned after a plaintiff’s injury; instead, they should consider only the information that a defendant possessed at the time of his alleged negligence. As Arlo Walsman notes in his November Illinois Bar Journal article, “Hindsight is 20/20,” the Illinois Appellate Court has not yet ruled on the admissibility of expert-opinion testimony regarding hindsight bias and trial courts have reached different conclusions on this issue. In his article, Walsman highlights the legal issues surrounding the use of expert-opinion testimony on hindsight bias and practical tips for lawyers to consider when confronted with such evidence.
