Litigation: “Hindsight Bias Affecting Judicial Rulings in Civil Cases“ – featured in Juristische Blätter 139, 2 (2017)

KNOETZL lawyers, Bettina Knötzl, Judith Schacherreiter, and Professor Alexander Schopper in JBl 2017,2: “Der Rückschaufehler bei der richterlichen Urteilsfindung im Schadensprozess”.  (Hindsight Bias Affecting Judicial Rulings in Civil Cases).

The human brain is not able to ignore facts that are part of its available knowledge. In liability litigation proceedings judges are required, by law, to apply an “ex ante” view, despite being confronted with only “ex post” known facts. The article is based on scientific research and deals with the effect of “hindsight bias” and how parties and the court might cope with it in litigation.  Of particular concern to the authors is when damage claims are subject to this kind of bias in civil liability proceedings. The authors tested their thesis upon three different study groups, comprised of law students from different Austrian universities. The result of their examination, and applying a theoretically differentiated analysis of Austrian liability law, the authors suggest a practical approach.  The recommended approach should help judges who actually acknowledge their hindsight bias, to neutralize their “ex post” knowledge and to rather reach results which would be obtained without this specific, later-gained knowledge. The objective is to provide practical assistance in reaching an assessment of the case “ex ante”, as required by law.

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