I had a recent attorney ask me how I deal with defense experts who waltz into court and say, “Well, in hindsight, this defendant/doctor/truck driver/crane operator could have made a better choice, but based upon what he faced at that moment, he made a very reasonable [bad] choice, and it is just unfortunate that the plaintiff was in the wrong place at the wrong time.” Like it is somehow now the plaintiff’s fault. Unfortunately, some juries buy this Hindsight Defense argument.
So you are sitting there wondering what to do. Here is something that I used recently and have stolen somewhere along this ride from smarter attorneys than me:
In every courtroom in America, you have people who are in court for many things, running red lights, cutting safety corners and someone getting hurt, or people simply not paying attention to doing their job. And every single one of them can come into court after the fact and say, “Yeah, maybe that wasn’t the best choice I made at that time.” Even people who murder someone can come into this court and say the same thing these defendants are saying. But there is one thing they all have in common.
Anytime someone says this is all hindsight, I want you to remember it is their excuse for lack of FORESIGHT. If they had used foresight as the rest of us are required to do, all of this harm could have been avoided. They want a Do Over. The problem is, my client wants a do-over too, and she will suffer for the rest of their life for the defendant’s lack of FORESIGHT.
Shove it up their *%%.