Defense Strategies for Effectively Anchoring Damages


The concept of anchors for damage awards at trial is nothing new. The research on the importance of anchors goes back decades. Numerous studies have shown that the amount of money awarded by juries is significantly impacted by the amount requested by the plaintiff. For example, in controlled studies where the facts remained exactly the same in both conditions except for the amount requested by the plaintiff, jurors on average awarded significantly more when the plaintiff asked for more. Consequently, many plaintiff’s attorneys have understandably been quick to embrace the strategy of asking for extraordinary amounts. After all, when a plaintiff asks for $70M in damages, $25M might not seem that unreasonable to jurors since it is less than half of what the plaintiff actually requested.

In response to this strategy, defense attorneys often offer their own counter-anchors at trial. Research on this is mixed. Some studies show this to be an effective strategy. Other studies have failed to replicate those findings. For example, a 2016 study found that low counter-anchors did not necessarily create the commonly-assumed backlash effect, but also did not have the expected anchor effect.

At Sound Jury Consulting, we have recently been conducting controlled experiments on a variety of topics to better understand what influences jurors, and we specifically looked at this issue of damage anchors. In our study, we presented an actual case to a large sample of jury-eligible respondents. There were two conditions in this study, with the only difference being that, in one condition, the defense provided an alternative damage number for jurors to consider. In the other condition, no alternative number was provided. The results showed that providing an alternative damage number had a significant effect on the damages awarded, lowering the average damage award by approximately one-third, which translated to $15M in this particular study.

Perhaps the more important question is how defense attorneys should present their alternative damage figure to the jurors. In fact, this is one of the most common questions that I get. Some defense attorneys just throw an alternative number out there for the jurors with little to no justification or explanation for that alternative number beyond the claim that it is more reasonable. This strategy is less effective. If jurors perceive the alternative anchor as totally arbitrary, they may just perceive it as a desperate attempt by the defendant to avoid having to pay a large amount rather than a genuine assessment of the evidence and the story of what happened to the plaintiff.

Furthermore, arbitrary defense anchors do little to defuse angry jurors motivated to send a message to the defendant. Instead, defense attorneys should provide jurors alternative frameworks for damages that help them understand why the alternative amount is a reasonable amount that makes the plaintiff whole. For example, in a recent case involving the death of a young father, and a daughter who never met him, we grounded the defense anchor in what the money could practically accomplish for the daughter and mother. We told the jurors to assume that the daughter will excel academically and have the opportunity to attend some of the most prestigious schools in the nation. We told jurors that the daughter and mother should have the financial resources to attend weekly therapy for the next ten to fifteen years, even if that is not their current routine. We told them that the family should not have to bear the financial stress of mortgage payments, so we said the award should include an amount that would pay off their home. We told them that, while getting away will never help them forget this tragedy, it might help them find moments of peace, so we threw in a generous amount of money to take a few nice family vacations each year. There were a variety of other items that we included, but you get the point. Our focus was on identifying concrete items and then creating the impression that we wanted to be very generous with those concrete items. What we found was that we could be extraordinarily generous on all of these items and the grand total would still fall far below the amount requested by the plaintiff.

To date, this strategy has proved effective the few times we have used it. At this point, we are left with only speculation, but I think this approach grounds the anchors in thoughtful, generous rationales that help jurors associate the award with the material impact it may have on the lives of the plaintiff. Furthermore, I suspect some jurors look at the range of items in our alternative framework and think about how nice it would be to have all of those items in their own lives. And perhaps most important, this approach forces jurors to think more carefully about the purpose of the money they are awarding and what it will accomplish. In doing so, it shifts the critical focus away from the defendant and to the plaintiff, resulting in an award that is driven more by sympathy than by anger. After all, anger is what drives the headline verdicts, not sympathy.

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