Why Anchoring Is Effective In Generating Excessive Jury Verdicts
Summation anchoring, requesting that the jury award an unjustifiably high nonecomomic damage award, is a highly effective tactic used by plaintiffs’ counsel. This is particularly the case when sympathetic jurors lack objective means for determining compensation for pain an suffering. Studies have shown that the “more you ask for, the more you get.” Anchoring provides an arbitrary, but psychologically powerful, baseline for jurors who may be struggling with assigning a monetary value to pain and suffering.
Mark a. Behrens, Cary Silverman & Christopher E. Appel at Shook Hardy & Bacon have authored a terrific article about this pernicious practice titled “Summation Anchoring: Is it Time to Cast Away Inflated Requests for Noneconomic Damages?” (American Journal of Trial Advocacy, Vol. 44:321 (2021)). Because noneconomic damages are subjective, the award proposed by plaintiff counsel is often arbitrary. Plaintiff attorneys’ appreciation of the power of suggestion has dramatically increased tort verdicts. Their article highlights this problem and suggests reforms to address “nuclear” jury verdicts.
On April 8, 2020, I served as a member of the faculty in a webinar presented by the International Association of Defense Counsel that focused on this problem. The webinar was titled “Combatting Plaintiff’s Attempts to Convince Judges that Fairness Requires Asking for Millions of Dollars in Voir Dire and the Rise of Extreme Opinions in the Jury Room.” During that presentation, we discussed how plaintiffs lawyers are mounting an effort to convince judges that asking for specific dollar amounts, usually millions of dollars, in jury selection is essential to securing a fair trial – describing it as “testing the waters,” not preconditioning. It is challenging even for experienced trial counsel to rehabilitate jurors if a judge ultimately allows specific dollar amounts to be discussed during voir dire. During that presentation, I was fortunate to have as co-panelists Aref Jabbour with Trial Behavior Consulting in San Francisco and John Tate, an accomplished trial lawyer with Stites and Harbison in Louisville. Verdict anchoring ideally should be brought to the Court’s attention in an in limine motion prior to jury selection.
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