Nationallly known plaintiff’s trial lawyer Rick Friedman recently called attention to the article from the University of Denver Sturm College law by John Campbell and others entitled: “Countering the plaintiffs anchor: Jury simulations to evaluate damages arguments.” The article deals with an important research project about the principle of anchoring which has direct application to the plaintiff’s damage arguments. I think plaintiff lawyers should read this article.
Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring. What is anchoring? Anchors are stimuli that produce a state of mind – thoughts and emotions. For example, the smell of bread may take you back to a memory about your childhood. A tune you hear on the radio may remind you of an event or a person. These are anchors that operate automatically and often without your being aware of the triggers. Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring.
Anchors can be visual, auditory and kenesthetic. How do you create a personal anchor? The simple formula is: (A) decide on the state you want to anchor. What feeling or action are you trying to anchor? (B) choose an anchor, or anchors, that you will use to trigger the state. For example, make a fist, or a finger and thumb pressed together or pull on your ear lobe. This will be the trigger or stimulus that will create the state you wish. (C) recall a memory or vividly imagine a situation where you experienced the state you want to anchor. Make the image sharp and bright. Makes sounds clear. Use a word that enhances the feeling for example, “yes!.” And (D) activate the anchor by the trigger you selected. Repeat the process to make it permanent.
Anchors are commonly used in marketing. One of the common applications deals with presenting prices. A high number is used to anchor an impression about a lower price for an article. The real estate agent shows the most expensive house first before showing the less expensive ones. The larger number operates as an anchor affecting the impression of the price of other houses. In 1974 psychologist did a study about the anchoring effect. Participants watched a roulette wheel that, unknowing to them, was rigged to stop at either 10 or 65. Participants were asked to estimate the number of countries in Africa belonging to the United Nations. For the half of the participants where the roulette wheel stopped on 10, they gave the median estimate of 25 countries. For the other half, where the wheel stopped on 65, their median estimate was 45 countries. The random anchors dramatically affected the judgment of the participants as to their estimates even though the number on the roulette wheel had nothing at all to do with countries in Africa belonging to the U.N. The number became an anchor that primed the judgment for the estimate.
In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.
This important article answers the question of whether a plaintiff is better off not suggesting any number or should avoid asking for “too much” because it will anger the jury. In summary, the study found that anchoring effects were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always asking for a damage figure and should request extremely high damages unless the concern is maximizing the chance of recovery.
As to the defendant, it is a mistake for the defense attorney to not provide the juries with an alternative to the plaintiff’s damage award generally. When the defendants suggested a lower number in this study the defendant won more cases (defendant prevail 81.7%) and when no alternative number was suggested it decreased by 19.4%. However suggesting an alternative lower figure by the defendant did not prove to have any statistical significant effect on damages. The study concluded that the defendants “lack an effective way to rebut the plaintiff’s outrageously high anchor.”
The article 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 if plaintiff win according to this study. Also, the three strategies available to defendants all failed to overcome the anchoring effect.
This study confirms the most common viewpoint that it is always a mistake for the plaintiff not to suggest a number to the jury and letting the jury “figure it out for themselves.” More importantly, it reflects on the conventional fear that asking for too much money will cause the jurors to become angry and do the opposite. While there certainly is logic to that view, particularly in thin liability cases or cases where the injuries are questionable or exaggerated, overal should ask for a large verdict.
Thanks to Rick for calling attention to this study as I believe this is an important article which should be applied with a large measure of common sense when applied to a specific case. However, it confirms what other studies have shown which is that there is a “priming” principle or anchor which is brought into play by asking for a substantial amount from the jury. Let us reevaluate the amount we asked the jury for to ensure that it is consistent with the real injuries and the case with this principle in mind.