Damage Anchors on Real Juries

• Author: Beth Murphy,Mary R. Rose,John Meixner,Shari Seidman Diamond
• Published date: 01 December 2011
• DOI: http://doi.org/10.1111/j.1740-1461.2011.01232.x
• Date: 01 December 2011

Damage Anchors on Real Juriesjels_1232148..178

Shari Seidman Diamond, Mary R. Rose, Beth Murphy, and John Meixner*

Experiments reveal anchoring as a powerful force, even when participants see the anchor as

irrelevant. Here, we examine the reactions of real deliberating jurors to attorney damage

requests and concessions in 31 cases involving 33 plaintiffs in which the jury awarded

damages. Jurors were critical consumers of attorney suggestions. They reacted more nega-

tively to, and were less inf‌luenced by, plaintiff ad damnums for pain and suffering than to

damage requests in categories grounded in more objective evidence. Deliberations revealed

that jurors often perceive plaintiff ad damnums not only as irrelevant, but also as outrageous,

impressions ref‌lected in their verdicts. These f‌indings suggest that extreme plaintiff ad

damnums, including those without grounding in quantitative evidence from trial, may not

exert substantial undue inf‌luence.

I. Introduction

When the jury in an ordinary civil trial f‌inds the defendant liable, the jury’s next task is to

determine the amount of damage caused by the defendant’s acts. Most commentators agree

that this is a diff‌icult assignment,1and jurors as well seem to recognize that they have a

challenging task.2In part, the challenge arises from the minimal guidance the law provides

*Address correspondence to Shari S. Diamond, Northwestern University Law School, 357 E. Chicago Ave., Chicago,

IL 60611; email: s-diamond@law.northwestern.edu. Diamond is the Howard J. Trienens Professor of Law and

Professor of Psychology, Northwestern University and Research Professor, American Bar Foundation; Rose is Asso-

ciate Professor of Sociology and Law at the University of Texas at Austin; Murphy is Research Social Scientist,

American Bar Foundation; Meixner is a JD/Ph.D. student at Northwestern University.

This research was supported by research grants from the State Justice Institute (Grant SJI-97-N-247), the National

Science Foundation (Grant SBR9818806), and the American Bar Foundation, with additional support from North-

western University Law School and Duke University Law School. We are indebted to an enlightened group of Arizona

judges who, with an eye toward optimizing the jury trial, permitted the videotaping project to occur. For helpful

comments and suggestions on this article, we thank Valerie Hans and the participants at the Cornell Conference on

Judgment by Numbers, October 2010.

1See, e.g., Edie Greene & Brian H. Bornstein, Precious Little Guidance: Jury Instruction on Damage Awards, 6

Psychol. Pub. Pol’y & L. 743 (2000); Michael J. Saks, Lisa A. Hollinger, Roselle L. Wissler, David Lee Evans & Allen

J. Hart, Reducing Variability in Civil Jury Awards, 21 Law & Hum. Behav. 243 (1997); Roselle L. Wissler, Patricia F.

Kuehn & Michael J. Saks, Instructing Jurors on General Damages in Personal Injury Cases: Problems and Possibilities,

6 Psychol. Pub. Pol’y. & L. 712 (2000).

2See generally Shari Seidman Diamond, What Jurors Think: Expectations and Reactions of Citizens Who Serve as

Jurors, in Verdict: Assessing the Civil Jury(R. Litan ed., 1993).

Journal of Empirical Legal Studies

Volume 8, Issue S1, 148–178, December 2011

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in the determination of damages.3In part, the diff‌iculty stems from the inherent uncer-

tainty of the projections that jurors are asked to make concerning, for example, likely future

medical expenses. In part, ambiguity arises as jurors must try to assess the value of the more

intangible losses associated with pain and suffering that have no ascertainable market

value.4

Faced with the diff‌icult task of determining damages by assessing the injury done to

the plaintiff and then translating the injury into an amount that will reasonably compensate

the plaintiff, jurors look for appropriate cues. A similar search occurs in many judgment

situations, and there is good evidence that decisionmakers commonly employ the cognitive

heuristic of anchoring and adjustment to assist them in simplifying their task.5That is, they

often identify an anchor that provides a starting point and, ultimately, although subject to

adjustment, the anchor inf‌luences their judgment.

In legal settings, jurors generally have access to a potentially potent anchor: attorney

damage recommendations. Attorneys in most jurisdictions are permitted to recommend

damage awards, with few limitations imposed on the way an attorney arrives at or presents

those suggested amounts.6Yet although most jurisdictions permit these attorney sugges-

tions, that permission is not without controversy, and the practice is forbidden in several

states. Here, for the f‌irst time, we are able to examine the role these potential anchors from

the attorneys play during the deliberations of real civil juries. We f‌ind evidence that jurors

are eager for input from the attorneys as they search for guideposts in determining awards

to appropriately compensate injured parties, but they are also critical consumers of that

attorney advice.

We begin Section II with a discussion of the task of determining damages and the

arguments for and against permitting attorneys to offer damage recommendations at trial.

The tension is between the benef‌its of providing useful guidance and the risk of distorting

jury judgments with undue inf‌luence. In Section III we examine research on anchoring

inside and outside the legal domain, a body of empirical research that suggests the potential

power of attorney damage suggestions. In Section IV, we outline our hypotheses about how

3Edie Greene & Brian H. Bornstein, Determining Damages: The Psychology of Jury Awards 20 (2003).

4See, e.g., Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L. Rev. 763, 765 (1995)

(“[pain and suffering] requires the monetization of a ‘product’ for which there is no market and therefore no market

price”).

5See, e.g., Thomas Mussweiler, The Malleability of Anchoring Effects, 49 Experimental Psychol. 67 (2002) (citing

results from a variety of domains: general knowledge, probability estimates, legal judgment, pricing decisions, and

negotiation).

6The one general exception is the generally forbidden so-called golden rule in which jurors are asked to put

themselves in the injured person’s place and render the verdict they would want to receive if they were in that person’s

position. See, e.g., Edwards v. City of Phila., 860 F.2d 568, 574 (3d Cir. 1988); Spray-Rite Serv. Corp. v. Monsanto Co.,

684 F.2d 1226, 1246 (7th Cir. 1982), aff’d, 465 U.S. 752 (1984); Loose v. Offshore Navigation, Inc., 670 F.2d 493, 496

(5th Cir. 1982). The argument against the use of the “golden rule” is that jurors are supposed to be impartial and

determine fair compensation. It is thus improper to attempt to draw them into a direct relationship with the plaintiff,

encouraging sympathy or bias. L.R. James, Annotation, Instructions in a Personal Injury Action Which, in Effect, Tell

Jurors that in Assessing Damages They Should Put Themselves in Injured Person’s Place, 96 A.L.R.2d 760 (2008).

Damage Anchors on Real Juries 149