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How Do “Anchors” Affect Damage Awards for Pain and Suffering?

“You can’t place a value on human life.”

“No amount of money can bring someone back.”

These are quotes we hear over and over from mock jurors, as they struggle to place a value on someone else’s suffering. Jurors often struggle more with this than any other part of their deliberations.

In many ways, this is not surprising. Not only do jurors have little experience with the legal system as a whole, but they are being asked to do something that, to many of them, feels fundamentally wrong. How do you reduce someone’s life down to a simple figure? How do you tell someone who has suffered terrible injuries, or a grieving family, that their lives and well-being are only worth X amount of money?

Many of our mock jurors express uncertainty about where to even start in determining such an amount. As we’ve discussed in a previous ‘anchoring’ blog, it is not uncommon for jurors to take the numbers recommended by each side (the ‘anchors’) and resort to splitting the difference. For defense attorneys, this can be especially frustrating if they feel the plaintiff’s anchor was unreasonably high; indeed, jurors may think they’re being hard on the plaintiff by only awarding a percentage of what was requested – and yet still award millions.

So, how can we help jurors make more reasoned judgements regarding intangible damages like pain and suffering? An article authored by Hans, Helm, and Reyna (2018) seeks to answer this question by studying how the meaningfulness of anchors affects damage award values. Below, we examine this article and review how it relates to our previous discussions regarding anchors.

anchors_damages

How Jurors Determine Damages

According to the Hans-Reyna Model for damage award decision making, individuals use two methods to represent information mentally: ‘verbatim’ and ‘gist.’ Verbatim represents the information exactly, while gist boils down the information to the meaning the individual took from the information.

Given the ambiguous and subjective nature of intangible damages, the Hans-Reyna Model posits that jurors use mainly the gist method to make such judgements. First, they determine whether damages should be awarded at all, based on how they understand the plaintiff’s injury and defendant’s culpability. They then use the meaning they took from the information they received to decide how severe the injury was and whether the resulting damage award should be ‘high,’ ‘medium,’ or ‘low.’ Jurors map this judgement (high, medium, or low) onto a dollar amount they personally believe corresponds to that assessment.

When jurors are given a numerical anchor by one or both sides, these figures provide context, allowing jurors to tie their intuitive ideas for high and low damage awards to concrete numbers.

Testing the Damages Model

In the aforementioned article, which sought to test the Hans-Reyna Model, participants were asked to read a scenario involving a personal injury case and then to award damages for pain and suffering. The authors varied the amount (large vs. small) and ‘meaningfulness’ of anchor numbers. For their purposes, a ‘meaningful’ number was one tied to a more relevant reference point, while a ‘meaningless’ number was based on an arbitrary measure.1 The experiment also included a scenario where no anchor was provided, to examine how the presence of an anchor affected the award amounts.

Unsurprisingly, when participants were exposed to a small anchor alone, their awards tended to be lower. When exposed to a high anchor alone, their awards tended to be higher. When given no anchor, awards fell in between but were much closer to the low group. Further, large anchors that were meaningful resulted in larger awards, while small anchors that were meaningful produced smaller awards.

So, what does this mean for how you should use anchors in the courtroom?

The Importance of (Meaningful) Anchors

There are many techniques you can use to combat anchors offered by plaintiff attorneys, such as removing or exposing the anchor. However, many defense attorneys are hesitant to provide their own counter-anchor, out of concern it will be taken by jurors as an admission of liability. While we argue this is usually not the case, the article discussed here also provides further evidence that the presence of a defense anchor can help reduce damage awards:

If the plaintiff attorney alone provides an anchor, jurors tend to award amounts that are closer to that value than if there had been no anchor at all. That is, in the absence of an anchor to ‘oppose’ the value given by the plaintiff attorney, the damages awarded tend to be higher. So providing a defense anchor can help ‘pull’ the damage award amount lower.

Further, providing a meaningful anchor can increase its effect even more. It is important to give jurors a practical, relevant figure they can point to. For instance, defense counsel might suggest something like “twice the amount of the hospital bills” or “$20,000 for each year since the accident.” Likewise, you can work to undercut the meaningfulness of the plaintiff attorney’s numbers, thereby reducing their impact on jurors. In the end, it is not enough simply to give a number – that number has to mean something to jurors in relation to the case.

Final Thoughts

Anchors provide jurors a reference point for awarding damages, and more meaningful numbers increase the power of that reference point. You can be sure the plaintiff’s lawyers will provide their own high anchor, so try to offer a counter that jurors feel better reflects the realities of the case. In this way, you can help guide them toward a fair result as they perform the unenviable task of placing a monetary value on life and suffering.

katrina_cookBy: Katrina Cook, Ph.D. – Consultant

References

Hans, V. P., Helm, R. K., & Reyna, V. F. (2018). From meaning to money: Translating injury into dollars. Law and human behavior, 42(2), 95.

1 The large anchor was given as $1.5 million and the small anchor as $50,000. In the meaningful-anchor scenario, the anchor was contextualized as being the amount of the national median lifetime income (for the high value) or median annual income (for the low value). In the meaningless-anchor scenario, the value was instead contextualized simply as the cost of upcoming courtroom renovations. (For instance, the article describes that for the meaningless large-anchor condition, participants received the following question: “The courtroom is under construction, and this project will cost about $1.5 million. Do you think the award amount to the plaintiff Rebecca Munroe for her pain and suffering should be above or below this number?”)

 

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