Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked to put themselves in the shoes of the defendant at the time of the challenged conduct. However, the findings of cognitive psychology warn us that jurors who know the outcome will find it very difficult to assume a foresight perspective.
Philip G. Peters Jr., Hindsight Bias and Tort Liability: Avoiding Premature Conclusions, 31 Ariz. St. L.J. 1277 (1999)