How bad would it be if, after making it through a year of the pandemic with your health intact, you came down with the virus at the end: You almost got to the point of vaccination, only to become infected at the last moment. That would be pretty bad. In fact, it feels like that would be worse than having contracted the virus earlier or at the peak. Why worse? Because you almost made it. This scenario plays to a well-known psychological tendency called a “close counterfactual.” We judge things by comparing them to alternatives that didn’t happen, “counterfactuals,” and a better counterfactual that seems psychologically close just serves to heighten the tragedy of what did end up happening.

For example, early research on the psychology of counterfactual thinking (Kahneman & Varey, 1990) points to this scenario: If a man switches flights at the last minute and then dies in a plane crash, his death seems more tragic than the deaths of all of the others on the same flight who had their tickets for months. The reason for that is that the alternative scenario (the man doesn’t switch flights) is easier to imagine for that particular person, and that makes it easier to mentally undo his death. That, in turn, makes it seem more avoidable and hence, more tragic. Of course, that isn’t a fully rational way of thinking: All the passengers are equally valuable, and their deaths are equally tragic. But the psychology still plays a role in how we evaluate stories, and stories still play a role in how we understand litigation. In this post, I will take a look at how litigators who want to play a tragedy up or down should address the psychological factor of the close counterfactual.

If You Are Evoking Tragedy… 

Plaintiffs will generally want to heighten the tragedy of their client’s situation, and depending on the story, some defendants may want that as well. When there is a bad outcome, you’re often fighting the perceived inevitability of that outcome that is brought on by hindsight. Because we know what ultimately happened, there is a tendency to believe that the die was already cast when we are hearing earlier parts of the story. That can cut against the availability of close counterfactuals that would add to the tragedy.

To address that, think about ways to emphasize the close alternatives that were available, in order to help reinforce the idea that it easily could have gone another way. If you’re pointing to a defendant, then the “path not taken,” by that party is an important part of the story. The message is that they had options, and those options were known, available, easy to use, and better. A plaintiff might be hesitant to say that a defendant almost did the right thing, because it seems close to an endorsement. At the same time, that “almost,” is not good enough, and the availability of that close counterfactual can help heighten the harm that was experienced. When emphasizing close alternatives, however, you need to be careful that you are not adding irrational elements that could bring on  victim blame. After all, hearing the airline scenario above, a person might think, “Well, he obviously shouldn’t have switched planes.” For that reason, focus on changes that are outside your protagonist’s control.

If You Are Downplaying Tragedy…

Other times, more often on the defense, you will want people to react to the facts, and to not add emotion or drama to the situation. When you have that need, your goal is to reduce the perceived tragedy by decreasing the availability and salience of close counterfactuals that could have led in a different direction. Focus on factors that make the alternatives distant: For example, the plans for this trip had been set for months, or , This was the route she always took home. 

Alternately, if you want to heighten the perceived personal responsibility of the other party, then you can highlight close alternatives that were within that person’s control: For example, typically, he planned his route carefully, but this time he didn’t. 

One important distinction is that these are narrative elements, not arguments or evidence. There may not be good and logical reasons why close counterfactuals should mediate blame, but they are part of the story, nonetheless. Based on that, we may as well know and control the narrative elements that are influencing a psychological bias. And at this point, let’s all cross our fingers and stay safe through the tail end of the pandemic.

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Kahneman, D., & Varey, C. A. (1990). Propensities and counterfactuals: The loser that almost won. Journal of Personality and Social Psychology, 59(6), 1101–1110. https://doi.org/10.1037/0022-3514.59.6.1101

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