Well, here we are. It’s 2020. Lots of celebrations, talk about the new decade, and the roaring 20s. But, many of us think of it with the term “hindsight” attached, as in “hindsight is 20/20,” meaning that when looking backward, things that were once unclear become clear. Monday morning quarterbacking is related. If we see an outcome, sometimes we can see how, for better or worse, that outcome was reached. Hindsight is the opposite of foresight, which some people possess to greater degrees than others. Some people have tremendous foresight and can imagine, better than others, how things will turn out. Some inventors have this level of foresight, they imagine what can be, and create it – think Thomas Edison. In litigation, the foreseeability of an event is often at issue. As in, “no one could foresee that the design of this road would lead to serious accidents”; or could they? In all of the hype about the new year though, it occurred to me that there is a way to create hindsight to some degree. That is, by testing the product with marketing research, or in our world, testing the lawsuit with mock jury research. Mock jury research and focus groups provide an opportunity to look at what transpired, and why, in the decision making process, thereby allowing clients to avoid the pitfalls of litigation. With the hindsight gained, they can focus on what theories, themes, and strategies worked. As a disclaimer, no trial consultant can say mock jury research provides 20/20 or “perfect” vision. But, if it improves vision from 20/400 to 20/40, well that is progress.
As we enter into a new year and a new decade, many people enjoy reminiscing about the past, while others eschew the past and focus their sights on the unknowns that will occur in future times. As business owners, David and I spend some time reflecting on our past successes and failures (and their have been many of both) while, at the same time, keeping an open mind about what lies ahead. 20/20 hindsight is, as the expression implies, perfect in its ability to predict the outcome of events in life. This being said, it is important to remember that perfection lies with the fact that the so called prediction is actually an acknowledgment of what actually happened. For example, saying “I knew it all along,” after something already happened, is often a self serving psychological device in that it is impossible to know, with 100% certainty, what is going to happen before it happens. However, and as David mentions, with properly conducted social science research about one’s lawsuit, it is possible to predict (but with less than 100% accuracy) what is more likely, than not, to happen. Absent conducting jury or other litigation research, there is no way to know what will happen, or just as important, why. Litigation research can verify one’s best guesses about the outcome of a case or it can disprove one’s beliefs. 20/20 hindsight is not the way good attorneys prepare their cases. It is far better to know, based on sound research, what will happen than to sit back, do nothing, and second guess a jury’s, judge’s, or arbitrator’s decision.