It is an important debate, and one that is likely only going to be settled on a case-by-case basis: when addressing damages, does a civil defendant embrace the idea of a counter-anchor, take the small risk of appearing to give ground on liability, while still probably holding damages below what they would otherwise be without the defense figure, or does the defendant stay defiant, emphasizing that no liability means no damages and no counter-anchor either? While the social science data is somewhat mixed, there is a broad consensus that continues to be supported in recent studies (e.g., Bystranowski, Janik, Próchnicki, & Skórska, 2021): If jurors do get to the point of considering damages, then the defendant who offers the jury an alternate figure will do better. However, there is also research showing, that particularly when the counter is not introduced clearly, it can be mistaken as an offer or set an apparent floor for damages (Próchnicki, Janik & Bystranowski 2022).

But amid the anchor/no anchor debate, there is another consideration that hasn’t gotten as much attention: When jurors consider either number, from the plaintiff or the defendant, what frame of mind are they employing? Are they just saying “yeah” or “nay” to the big round numbers that have been floated by the two sides, or are they rolling up their sleeves and putting on the green visors to reach their own answers? Are they settling on a speculative number that “feels right,” or are they following calculations that get them to a truly grounded number? With or without an anchor, the defense will usually want to encourage a frame of mind focused on calculation, not speculation. While that can be an easier route to take with expense-driven economic damages, even in the non-economic categories, jurors should be following a process rather than grabbing a number out of the air. In this post, I’ll share a few thoughts on ways to encourage that calculation-based mental mindset in your jury.

Encourage Jurors to Step Up to the Task

Send your jury the message that they should welcome the harder work:

Let me be blunt: The easiest route would be just to take a number that they suggest or that I suggest and go with that. But this case is too important for the easy route, and ultimately you aren’t here to take the easy route. The harder route — and the route that jurors are called to take in courtrooms around the country — is to do the work to come up with numbers that don’t just sound good or feel right, but to come up with numbers that have a foundation, and a clear basis in the facts and the evidence. 

Put the Instructions on Your Side 

If you have instructions that emphasize the need to base all determinations, including damages, on the evidence, and instructions that forbid speculation, emphasize those, put them on a slide in closing or even opening:

Let me make one suggestion about this instruction: If you do end up getting to the point of talking about damage numbers, then your duty and your charge will be to follow this instruction. If you find yourself considering a number that is just resting on thin air, then you are not following the instructions. The only numbers you should be working toward are those that are supported by evidence, and grounded on clear and firm reality. 

Give Them the Tools

A good damages expert isn’t so much an accountant as a teacher of accounting, not saying “I did the calculations, trust me” but saying, “Here’s how you can do the calculations.” That applies most easily to economic categories, but jurors also need a method for non-economic categories. In venues where reference points like per diems are limited, jurors will be most comfortable using the economic values as a guide for the non-economic categories.

Following this method, you can reach the same result on a fair and reasonable value for his loss, grounded in the evidence. For the other categories, that is more difficult, but you can use this figure as a guide, for example, if you found his emotional loss was roughly parallel to his medical loss. 

Acknowledge the Difficulty 

Acknowledge that jurors may feel frustrated in coming up with a grounded number in some of the plaintiff’s categories, and frame that frustration as a problem with the categories and not a problem with the jury.

I think if you do get to this point, what you’re going to find is that it can be tough to put a number on that and tough for that to be a number that is supported by the evidence and not by speculation. If you are frustrated, then that frustration is a sign that you have not gotten there yet. Just due to the nature of some of these categories and types of awards that the plaintiff is seeking, it is going to be hard to link that to the evidence they’ve presented. But that is what you’re called to do. 

Generally speaking, the more jurors are not just “accepting” numbers but working on them, the better it will be for the defendant. It is always possible that a math-oriented jury could end up calculating their way to higher numbers, but my experience watching many mock trials over the years and talking to actual jurors once they’ve reached a decision, the calculating mindset will far more often bring things back down to earth. The approach that I’ll sometimes call “toss and run” (where one juror just tosses out a number, and then the rest of the group runs with it) leads to higher damages, while working on it leads to lower damages. So, defendants, you’ll want them to be working.

Bystranowski, P., Janik, B., Próchnicki, M., & Skórska, P. (2021). Anchoring effect in legal decision-making: A meta-analysis. Law and Human Behavior, 45(1), 1. URL: https://psycnet.apa.org/fulltext/2021-26899-001.html 

Próchnicki, M., Janik, B., & Bystranowski, P. (2022). Debiasing numerical verdicts and judicial discretion: reflections on mitigating the anchoring effect in judicial decision-making. In Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives (pp. 79-103). Cham: Springer International Publishing.

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