For years we have been facing Reptile tactics designed to increase verdicts. With each nuance in the strategies, defense counsel are often playing catch up as to how to battle them. Consulting services conduct studies on juror reactions and war stories are shared to determine how best to combat each new approach. A common one being addressed currently is the use of anchors. The attorney will plant large numbers in the minds of the jury that become an anchor from which final damages are determined.
Long before becoming an attorney, I witnessed similar techniques in retail. A customer asks about the cost of a ring. The salesperson says it is a great buy at only $1250, then pulls it out and looks at the box and realizes it is only $775. The lower number now sounds like a great deal because the customer was anchored on the larger number. With a jury, some may speculate that proposing an outlandish number hurts credibility. However, even when that is the case the number can be an anchor in discussions. An example scenario:
Juror 1: They’re asking $16M, which is clearly too high. I would say maybe 50% is plenty.
Juror 2: Even that feels too high to me. I was thinking not more than 20%.
Juror 3: How about if we compromise in the middle at 35%?
If a jury awards $5.6M on a case that has a reasonable value of $1.5M, the exaggerated request has done its job even if the jury found the high claim was not credible.
The use of an anchor may start as soon as voir dire, with questions seeking to ensure a juror would be fair and not hesitate to award big numbers “if shown by the evidence.” The generic questions can be countered by the defense with questions confirming the juror would not hesitate to say no when the burden is not met. In some instances, a pretrial ruling may be possible to prevent the use of numbers not appropriately disclosed. Courts vary as to whether specific amounts are required to be disclosed for noneconomic damages, but it is a point to consider.
When anchoring is used, one approach is to call out the technique.
When you hear a large number, it can become anchored in your brain. Even though you know it is not reasonable, you start there and work your way down to what sounds fair in comparison. (Think of the retail example or similar scenario.) But there is a difference between what is fair in comparison, and what is truly fair. The instructions say that it is your job, and yours alone, to weigh the evidence and judge credibility, and you may disregard what is not credible or proven by the evidence. Do not start at the top with a number that is not reasonable. Start at the bottom with the evidence and only consider those things that were proven.
There has long been a concern on the defense end that offering up a number creates a floor. There is certainly some validity to that. But failing to offer the jury an alternative to an anchor carries risks. Similarly, a slam dunk liability case is not lost by addressing damages. If not providing an alternative verdict amount, specific elements can still be addressed to show how exaggerations add up and that there are alternative approaches to arriving at a fair award. When defending on liability, exaggeration in damages can carry through to credibility on liability issues. Thus, a critical analysis of damages for the jury can have the dual effect of containing damages and enhancing liability defenses.
While there is no one way to address the various tactics employed by plaintiff’s counsel to increase verdicts, it is important to be aware of the techniques and plan for whatever may arise. Ultimately, the goal is to get a fair result based on the evidence, not based on emotions and bias. That message should be clearly communicated to the jury.