Causation, Lawyers and Evidence

First Reading

Robbennolt and Hans

two main questions of causation in law

1. Cause-in-fact: Did the defendant's action actually cause the harm?

2. Proximate cause (legal cause): Was the harm a reasonably foreseeable result of the defendant's action?

cause in fact

- analysed with the but for test

- research shows people often assign blame based on how preventable the harm seems and may overemphasise dramatic causes over mundane cause

proximate cause

- focuses on whether it is fair/reasonable to hold someone responsible

- foreseeability is key

- research shows people tend to punish based on outcome severity, even when foreseeability is low

counterfactual thinking

- imagine what could have been

- impacts both legal judgments and everyday casual thinking

Second reading

Spelman and Mandel - When possibility informs reality, counterfactual thinking as a cue to casality

Spellman & Mandel counterfactual quote

"Counterfactual thinking may affect causality judgments by changing beliefs about the probabilities of possible alternatives to what actually happened .."

upward counterfactuals

how things could have been better

- influential in judgments of responsibility and causality

downward counterfactuals

how things could have been worse

counterfactuals as cues for causality

when people see a minor action as easily changeable to prevent an accident, that action is seen as a strong cause

proximity effect - Miller et all

Events that are unusual or near-misses generate more counterfactual thoughts as there is less cognitive effort required to mutuate in these instances

action effect link

People are more likely to see actions as causes when they imagine easy alternatives.

Taylor & Fiske

Events/people that are the focus of attention (Salient) are more likely to be mutated

Kahneman & Miller

Unusual events tend to be mutated more easily, ' if only I had not taken the unusual route home'

- tendency to 'restore events and default to the normal default'

Rose & Olsen

negative events are more likely to trigger counterfactual thinking - we do not spend time thinking about alternatives for positive things

how does counterfactual thinking impact emotions

can amplify emotions - e.g., feelings of regret, distress, shame and guilt, happiness - realise that the outcome was not inevitable (person had agency to change it?)

causal chains - Spellman and Mandel

Counterfactual thinking is more useful for assessing the causes of a single event rather than a set of events (casual chain) as you would have to mutate multiple events which is more cognitively complex

relationship between mutation and causality

Most mutable event may not be the most causal event

Mandel and Lehman experiment facts

'Jones took an unusual route home. He was hit by a drunk driver who charged through a red light."

Group A = how would Jones finish this thought 'If only...'

Group B = what caused the accident

Mandel and Lehman findings

most mutated event was taking the unusual route home and the cause of the action was the drunk driver

- mismatch between causality and mutation

Third Reading

Effectiviology: The Fundamental Attribution Error: When People Underestimate Situational Factors:

Ross, fundamental attribution error

people tend to overestimate the role of personality or disposition and underestimate situational factors when explaining others' behaviour.

example of FAE

Seeing someone trip and thinking "They're clumsy" rather than "The floor is slippery."

what are the 3 psychological reasons for FAE

attention bias - we focus on people not situation

cognitive shortcuts - easier to attribute behaviour to a stable trait than to complex circumstances.

cultural factors - individualistic societies show FAE more than collectivist cultures

What 6 ways can we reduce FAE

be aware of it and the overconfidence bias

actively think about the situation: have you acted similarly before?

avoid the ego-centric bias and consider the situation from the other person's POV

Consider a range of explanations for the behaviour in question

Engage in reflective thinking - more likely to occur when we are 'cognitively overloaded'

Practice debiasing techniques take time to think about it (slowing down your cognitive processes - engage in System 2 thinking)

affect and judgment

researchers induced the emotions of disgust and found ppts were more likely to see situations as immoral, emotions heighten the chance of FAE

affect and cognitive processing Schwarz et el

Participants in a sad mood were more likely to focus on the detail of an event (local focus) rather than the bigger picture (global processing)

actor-observer effect

people attribute their own behaviour to situational causes

product liability

If an individual is injured while using a product, they tend to blame the injury on the design/operation of the product than due to their own lack of care

- self serving bias

stereotyping Bodenhausen et al

Participants in a positive mood tend to rely more on stereotyping

Fourth Reading

Sternlight - The Psychology of lawyers in litigation and negotiation

overconfidence, Sternlight

lawyers over estimate the strength of their case, especially if they are male or have a lot of experience

confirmation bias

lawyers seek evidence supporting their clients position and ignore contradictory info

- heightened by the longevity of the relationship with the client

anchoring

initial demands or offers in negotiation strongly influence outcome

reactive devaluation

devalue what your counterpart is offering just because they are your counterpart, even when the offer is strong

negotiation psychology

lawyers use framing and deadlines or time pressures to influence decisions

Fifth Reading

Loftus and Palmer Reconstruction of Automobile Destruction

how do lawyers act as agents of suggestibility

the way questions are asked can distort people's memories of events

eye witness memory is not a perfect recording, it is influenced by language

Loftus and Palmer study

stronger verbs "smashed" led to higher estimations of speed

ppts more likely to report seeing broken glass when a more impactful verb was used

memory is reconstructive not just reproductive

misinformation effect

any post-event information that alters the memory of a specific event (Pickrell, Bernstein & Loftus, 2016)

what increases the misinformation effect (Berkowitz & Loftus)

(1) passage of time (longer period of time between event and misinformation/recall - increases likelihood of misinformation adoption)

(2) internal factors sleep depravation, feeling intoxicated increase likelihood of misinformation effect

Chrobak & Zaragoza

being forced to answer questions (i.e., being made to fabricate stories) can lead to incorporation of false memories (for nearly half of participants in study) - similar for pressure felt to provide evidence?

Berkowitz & Loftus

witnesses resorting to conducting their own research on social media may lead to incorporation of social media information into eyewitness memories of event in question

Sixth reading

Foster, Garry and Loftus - Repeated Information in the Courtroom

illusory truth effect

people are more likely to believe statements that they have heard repeatedly

how does the illusory truth effect work

Repetition strengthens familiarity, which can be mistaken for accuracy.

- Not limited to positive statements—false information can also seem more believable with repetition.

Klein - naturalistic decision making

in occupations where people have to make in the moment decisions (firefighters) individuals use pattern matching to see if it something which they have dealt with before. Only if they have never seen it will they apply system 2

- done to save time

Klein Naturalistic Decision Making Article

Challenged the classical view of decision making

Individuals do not make decisions by listing out the options and selecting the best one, they decide based on experience