High damages request can 'anchor' your case

Renowned plaintiffs' trial lawyer Rick Friedman recently called attention to an article from the University of Denver Sturm College of Law by John Campbell and others entitled: "Countering the Plaintiff's Anchor: Jury Simulations to Evaluate Damages Arguments." What are anchors? Simply put, they're stimuli that produce a state of mind - thoughts and emotions. The article examined the "anchor" established by the amount of money asked for by the plaintiff, and studied the impact of whether a defendant ignores the number or suggests an alternative. The article addressed the question of whether a plaintiff is better off not suggesting any number, or should avoid asking for "too much" because it could anger jurors. In summary, the study found that the anchoring effects were extremely powerful, with plaintiffs able to increase dramatically potential recoveries by simply demanding more money: Damages increased an average of 430 percent by the anchoring tactic. The conclusion was that the plaintiff should request extremely high damages, unless the concern is maximizing the chance of recovery. As for the defendant, it would be a mistake, the article concluded, for defense counsel not to provide the jury with an alternative to the plaintiff's damages request. When defendants suggested a lower number, they won more cases - 81.7 percent - but decreased by 19.4 percent when no alternative number was suggested. Suggesting a lower figure, however, did not prove to have any statistical significant effect on damages. The study concluded that defendants "lack an effective way to rebut plaintiffs' outrageously high anchor." The conclusion is significant for plaintiffs' attorneys: Anchoring works. Although the plaintiff who shoots for the stars takes a credibility risk that reduces the chances of winning, it is outweighed by the higher damages award. Also, all strategies available to defendants failed to overcome the anchoring effect. The study confirmed the common viewpoint that it is a mistake for the plaintiff not to suggest a number to the jury and let the jurors figure it out for themselves. More importantly, it reflected on the conventional fear that asking for too much money will cause the jurors to become angry and do the opposite. While that view seems logical, particularly in thin liability cases or cases in which the injuries are questionable or exaggerated, asking for a large verdict remains the most likely path to a large victory. ----- Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010. Published: Thu, Dec 25, 2014