Most attorneys who work in civil litigation are familiar with the “anchoring effect,” and know that suggesting a number has an influence on damages. Numerous studies have shown that the amount of a juror’s damages decision is strongly affected by the number suggested by the plaintiffs’ attorney, independent of the strength of the actual evidence. Research has repeatedly demonstrated that, independent of the evidence, asking for more in trial raises the chance of getting more on the verdict form. And the “more” in the ask doesn’t always have a solid connection to the evidence. In a classic study on the effect of anchors, researchers (Tversky & Kahneman, 1974) demonstrated that even a random spin of a numerical wheel prior to making an unrelated estimate (e.g., the number of countries on the African continent) shows that higher spins result in higher guesses. In other words, even when we know the anchor is arbitrary, it can still have a powerful influence.
Other researchers at the University of Denver and the University of Arizona studied this same issue.Their 2016 published study involved a randomized controlled experiment in which mock jurors were presented with a medical malpractice trial, manipulated with six different sets of damages arguments in a factorial design. The study confirmed that anchoring has a powerful effect on damages; damages were 823% higher when the plaintiff requested $5 million as opposed to $250,000. When the plaintiff’s request for damages was low, the defense response had no effect on the amount awarded. However, when the plaintiff’s demand was high, jurors awarded 41% less when the defendant offered a counter-anchor than when the defense merely ignored the request or attacked it as unreasonable.
In another study, participants were asked to recall the last two digits of their social security number and then were subsequently asked to price a bottle of wine. Those with social security numbers ending with high digits (think 70s, 80s, or 90s) were willing to pay more for the wine than those with social security numbers ending with lower digits.
Judges are subject matter experts and logical evaluators. Yet studies show they are susceptible to anchoring as much as jurors are subject to its influence, even when the anchor is totally irrelevant.
Anchoring is also widely used in marketing in a variety of ways. For example, anchoring is involved in the practice of using one high priced product or service option to make other choices seem cheaper or a better choice by comparison. Advertisers use the concept in tying tunes, images or slogans to their product. The idea is to connect a phrase or slogan to a product so that whenever one hears or thinks about the slogan one thinks about the product, which in turn influences purchase decisions. We see it all the time in marketing. Maxwell House coffee has used the slogan “good to the last drop” in all of its messaging and advertising starting in 1917. When we see or think about Maxwell coffee we connect that to the idea that it’s “good to the last drop.” What’s significant is those ads which make you wonder what the connection is to the product are likely designed to create an emotion or feeling which they wanted linked to their product. Instead of Maxwell’s slogan, Folger’s Coffee used a scene of a soldier returning home for Christmas and is emotionally moved by the smell of Folger’s Coffee brewing in the kitchen to anchor the emotion of homecoming with their product.
Anchoring has uses of influence than numbers in a jury trial. It can be applied to the jury or even the judge to create a subconscious reaction or idea. It is possible to connect an exhibit, a phrase, or an action to an idea which will come to the juror’s mind automatically every time the anchor is repeated.
It can also be used as generate a personal feeling or attitude or reminder in ourselves as well. In trial. The process is best explained in Neuro Linguistic Programming (NLP). NLP anchoring uses a stimulus; (it may be a sound, an image, a touch, smell or a taste) to trigger a consistent response in you or someone else. The stimulus or anchor makes a link, connection or association between the two. Once something has been anchored we react to it at a subconscious level without consciously thinking about it. Anchors are built by repetition and association. You can link, just as advertisers do, anchors associating both images and thoughts. The anchor can be a visual anchor: a photo, an object anything. It may be an auditory anchor just as a song can make you immediately think of an event from the past. The Anchor can also be connected to touch smell or taste.
A simple illustration of creating an anchor in trial could be having a major case theme on a red piece of paper. Each time the theme is repeated the lawyer holds the red paper and speaks from the same physical position and in the same way. After a few repetitions, the lawyer could assume the same physical possession and posture, pick up the red paper, holding it in the same way, but say nothing, yet everyone would immediately think of the theme. That’s because there is a subconscious connection between the anchor of the colored paper. and the words linked to it. Themes repeated are a form of anchor in that it can link the words to an image: “if the glove doesn’t fit, you must acquit” or even “Lying Ted.”
More importantly, the same idea applies to our personal mental state. We can anchor feelings in the same way. Something as simple as reflecting on a time when we felt very confident and self-assured, clearly creating the image and the feeling. In that state we can then physically connect the feeling to something including a phrase or something physical such as touching fingers together in a particular way or putting our hands together in some fashion or any other physical act. This process when repeated several times creates an anchor between the physical and the feeling. By repeating the physical link, we will generate mental feelings. We can, in this way, anchor feelings of confidence or calmness or the like.
Anchoring, therefore, for trial lawyers has several particularly important possible uses. One is to influence the damage issues. Another to follow the same pattern of advertising by connecting two things together in a courtroom in a way in which we unconsciously generate repeated reactions by the jury or the judge. Another is by anchoring past healthy states of mind to some link of sound, image or touch to produce the feeling of confidence or calm that we need at the time.