Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments

31 Pages Posted: 22 Jul 2014 Last revised: 9 Mar 2017

John E. Campbell

University of Denver Sturm College of Law

Bernard Chao

University of Denver Sturm College of Law

Christopher T. Robertson

University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

David V. Yokum

University of Arizona - James E. Rogers College of Law; University of Arizona - College of Science

Date Written: January 28, 2015

Abstract

Numerous studies have shown that anchoring strongly effects juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led some to believe that “the more you ask for, the more you get.” Others believe that the damage demand must pass the “straight-face” test. But little scholarly literature exist to determine whether an outrageously high request really does undermine the plaintiff’s credibility, and whether this “credibility” effect outweighs the anchoring effect.

Likewise, little scholarly attention considers whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.

To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to a shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. The plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2) ignoring the plaintiff’s damage demand; or (3) attacking the plaintiff’s demand as outrageous and using this characterization to argue that the plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.

Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.

Keywords: anchoring, concession, jury, remedies

Suggested Citation

Campbell, John E. and Chao, Bernard and Robertson, Christopher T. and Yokum, David V., Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments (January 28, 2015). 101 Iowa Law Review 543 (2016); U Denver Legal Studies Research Paper No. 14-36; Arizona Legal Studies Discussion Paper No. 14-25. Available at SSRN: https://ssrn.com/abstract=2470066 or http://dx.doi.org/10.2139/ssrn.2470066

John E. Campbell

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Bernard H. Chao (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Christopher T. Robertson

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

HOME PAGE: http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=714

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

23 Everett Street
Cambridge, MA 02155
United States

David V. Yokum

University of Arizona - College of Science ( email )

1040 E. Fourth Street
Tucson, AZ 85721-0077
United States

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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