Inferring and Explaining

113 Te defendant’s attorney conceded that his cli- ent was liable for some of Tony’s initial pain and sufering, that original trip to his chiroprac- tor, and certainly the tow truck and body shop expenses. He argued vehemently, however, that Corey bore no responsibility, legally or morally, for extensive orthopedic surgery or the years of sufering that Tony had manifestly endured or his diminished lifestyle as a result of the labral tear because the car accident was in no way causally responsible for the injury. Tony’s whole case, of course, depended on the contrary asser- tion that the crash had caused the labral tear and that the ensuing three years of pain and psycho- logical suferingwere the direct result of Corey’s negligent driving. Te basic evidence that got this civil suit going in the frst place was a classic inference from a correlation—in the frst sense defned above—to a cause. e 1 . Corey and Tony’s car were involved in a col- lision, and shortly after (within three months), Tony was diagnosed with a labral tear. t 0 . The collision caused the labral tear. We can imagine reverse cause, and common cause, rival explanations: t 1 . The labral tear occurred three weeks earlier while skiing. Tony could easily have avoided the accident by timely braking, but the loss of mobility from the hip injury pre- vented him getting to the brake pedal on time. Thus the tear caused the collision. t 2 . A loud crashing sound from a construc- tion site nearby distracted Corey and led to his misreading of the stop signs. It also star- tled Tony, and as he wrenched to see where the crash came from, he tore his labrum, and because he was distracted, he was slow to apply the brakes. Thus the loud crashing sound caused both the labral tear and the collision. Corey’s attorney wisely refrained from suggest- ing accounts such as these and rested his case on the null hypothesis rival explanation that something completely independent of the car accident caused the hip injury. CorrelatIons and Causes t 3 . The collision did not cause the labral tear; something else was its cause. You may think that t 3 is a pretty vague rival the- ory, and indeed, it is. But it was probably a good trial strategy for two reasons. One is the rules for negligence suits. Te plaintif must “prove,” by a “preponderance of evidence,” that the defen- dant’s negligent action (remember, Corey had already admitted that he was at fault for the accident and thus legally negligent) caused the fnancial and psychological loss that needs to be compensated. Te defense need not, there- fore, explain what did cause the injury but simply show that the generic rival is better (or even just as good) as the plaintif ’s account. Te second reason for keeping things vague is that Corey’s lawyer could toss out hints as to what the outside cause of the tear might have been without being committed to any of these theo- ries being a better explanation. Te defense, for example, made a big deal out of Tony’s own admission that he had been a very avid skier for most of his life and that the hospital records from