Anchors away: attacking dollar suggestions for non-economic damages in closings: defense counsel should use a motion in limine to preclude plaintiffs' attorneys from using lump sum or per diem computations to jurors.

• Author: Rushing, Don
• Position: Feature Articles

PICTURE THIS. John Doe suffers a serious and permanent leg injury. At trial, his attorney produces testimony from Doe and his healthcare providers regarding the chronic pain and disability Doe is suffering, as well as his treatment. During closing argument, Doe's attorney requests the jury award $100,000. Defense counsel argues that $50,000 is the appropriate amount, based on the evidence produced by Doe. The judge instructs the jury that it must award damages on the basis of the evidence. The jury awards $90,333.

No, this case was not tried to a real jury in an actual courtroom but to a mock jury as part of a study to determine the effect of requesting specific dollar amounts upon jury deliberations. (1) The study found that Doe's damages award increased as his attorney requested larger sums, although the evidence as to damages was unchanged. For instance, in response to a request for $300,000, the award was a mean of $188,462; to a request of $500,000, the award was a mean of $282,868; and to a request for $700,000, the award was a mean of $421,538. As part of the same study, a separate group of jurors was given the same factual scenario, but the plaintiff's attorney did not request a specific amount of damages, and the jurors awarded a mean of $167,812.

THE PROBLEM

This study, and others like it, is more than an interesting academic exercise. Real life parallels are found in courtrooms across the country.

Kusisto v. McLean is one such example. (2) Kusisto involved an 18-year-old boy injured in a motorcycle accident. The boy sued, joined by his father, who brought a companion suit for his son's injuries. The boy suffered severe injuries, including the amputation of his leg at mid-thigh. Just before trial, the defendants conceded liability. The case went to the jury on the issue of damages. In closing argument, the attorneys for the boy and his father argued for a lump sum to compensate for damages, including pain and suffering. The father's attorney piggy-backed off of the closing argument of the son's attorney, telling the jury:

Mr. Steenbergh, as a competent and respected member of the Bar of this community, as this boy's lawyer, has asked for $750,000 for this boy and on the evidence which has been presented here I agree with him. It isn't any binding figure on you people. It is within your province to do what you feel is right. (3) Swayed by the argument, the jury awarded $510,000 to the son and $32,500 to the father. Defense counsel made a timely objection to the use of argument for a specific sum in closing, and also appealed the court's denial of a motion for new trial.

On appeal, the New York Appellate Division held it was error for the boy's attorney to argue a lump sum and for the father's attorney to make himself an unsworn witness and render opinion testimony concerning a matter not in evidence. Despite this holding, however, the court did not reverse the holding because the trial judge gave appropriate limiting instructions. Instead, it modified the judgment and awarded a lower amount of damages.

Kusisto, as well as the mock jury study, illustrates the mischief caused by arguments by plaintiff's counsel for specific monetary sums for non-economic damages during closing. No objective test can assess the severity of a plaintiff's non-economic losses. No satisfactory measure can translate this type of harm into dollars. Jurors are given little guidance in how to determine a reasonable award for non-economic damages. Plaintiff' s counsel, without a factual basis for doing so, will fill this analytic void with the suggestion of an amount. Once such an argument has been made to the jury, defense counsel has no effective way to "un-ring the bell."

Arguments seeking specific monetary amounts for non-economic damages, by their very nature, are based solely on the opinions of plaintiffs' counsel. This is so because while there may be evidence of the impact of the experience on the plaintiff, there can be no evidence of the dollar value of that experience. This is in striking contrast to arguments for monetary amounts where there is concrete evidence before the jury concerning lost earnings, medical expenses, or estimates of future lost earning capacity. The end result is that requests for specific monetary sums for non-economic damages result in inflated jury verdicts propelled only by the opinion of plaintiff's counsel.

This problem is exacerbated by the frequent unwillingness of courts to limit arguments for a specific monetary amount for non-economic damages before they are made. Because of their impact on juries, defense counsel must attempt to preclude these arguments through the use of motions in limine.

THE "ANCHORING EFFECT"

Research shows that a plaintiff's use of a dollar amount during closing argument can cause a jury to experience a distinct cognitive phenomenon, labeled by researchers as "anchoring." Anchoring is defined as "the bias in which individuals' numerical judgments are inordinately influenced by an arbitrary and irrelevant number." (4) Anchoring describes the correlation between the suggestion of specific numbers to a subject, and the effect of this suggestion on the subject.

Research reveals one truth about the anchoring effect--it results in reliable positive correlation between a number suggested to and chosen by a subject. The effect is not predicated on the plausibility or reasonableness of the numerical anchor, as has been revealed through a variety of studies. In order to observe the effect of anchoring, researchers will ask people to make a numerical judgment after providing them with an initial estimate. (5) Final judgments tend to be positively correlated with the random starting point. Anchoring not only results in an increase in the average estimate of the anchored subjects, as compared to the control group, but the studies imply that the "magnitude of the effect grows with the discrepancy." (6)

Jurors are not immune from the "anchoring" effect. One study found that nearly half of mock jurors selected a damage award that exactly matched the amount requested. (7) Another study required subjects to read a short description of a personal injury suit brought by a woman against a health maintenance organization. (8) The plaintiff claimed that her HMO-prescribed birth control pills resulted in ovarian cancer, which precluded her from having children and would ultimately result in her death. The subjects were separated into four distinct groups, with each receiving a different numerical anchor prior to determining damages for pain and suffering. The four anchors were $100, $20,000, $5 million, and $1 billion. The study revealed a linear relationship between the anchors and the subsequent awards. A larger request in the ad damnum clause yielded a greater award.

Another study analyzed the effect on mock jurors of requests for different awards. (9) One scenario that was analyzed involved a plaintiff with permanent temporomandibular joint and shoulder injuries, as well as permanent wage loss. The "jurors" were told that the defendant had admitted liability and that the sole remaining issue was the amount of damages to be awarded. They were given differing summations in which the plaintiff's attorney asked for specific monetary amounts of $200,000, $400,000, $600,000 or $800,000. In each instance, defense counsel suggested $150,000.

The results were enlightening. A request of $200,000 brought a mean of $197,875; a request $400,000 brought a mean of $289,375; a request of $600,000 brought a mean of $434,400, and a request of $800,000 brought a mean of $479,447. As part of this same study, a separate group of jurors was given the same factual scenario, but the plaintiff's attorney did not request a specific amount. The jurors awarded a mean of $276,687.

The primary finding of this study was that "when more money was requested for damages by the plaintiff's attorney, the jurors awarded more." This study powerfully illustrates how a numerical anchor used during closing argument can increase the amount of damages that may be awarded by a jury.

Another researcher concluded that his examination of anchoring on mock jurors indicated the "powerful impact of the introduction of anchors on mock jurors' damage awards." (10) This study utilized three different settings: no anchor, a $2 million anchor and a $20 million anchor. The subjects were shown a videotape of a personal injury trial involving the death of two children in a car accident. The anchors were provided to certain subjects in the context of a closing argument and to others as upward limitations on damages as concluded by the judge. In each setting, the damage awards moved toward the anchor that was given to the mock jurors.

This research shows that defense counsel should be concerned with the possibility that jurors will become anchored to the monetary sums suggested by plaintiffs' counsel in arguing for an award of non economic damages, no matter how irrelevant or outrageous the suggested sum may seem. While the numerical anchoring effect applies broadly to any category of damages, the impact is greatest on that category of damages least susceptible to quantification--pain and suffering; emotional distress; fear; loss of care, comfort and society; or loss of consortium.

The time has come for reform on this issue and for defense counsel to use the latest cognitive science research to bolster an argument against the suggestion of monetary sums in compensation for non-economic damages in closing argument.

JURISDICTIONS SPLIT

No objective test is available to assess the severity of a plaintiff's non-economic damages, nor can any method satisfactorily translate this harm into an appropriate monetary award. The American tort system requires a jury to engage in the artificial process of translating subjective human experiences into monetary awards that seek to place an objective measure on those experiences. Because of...