Noneconomic damages are inherently difficult to quantify. There is no set method, no metric, no baseline, and no formula. They serve a compensatory purpose, but they are entirely made up from case-to-case and person-to-person, which leaves them ripe for abuse and manipulation.
Many things have huge price tags: famous paintings, military jets, and celebrity contracts, for example, can cost over $100 million. What do those high-priced items have to do with noneconomic damages? Nothing. Yet, they are frequently referenced during closing arguments. [See, e.g., Gregory v. Chohan, 670 S.W.3d 546, 551 (Tex. 2023); Valenzuela v. City of Anaheim, No. SACV 17-00278-CJC, 2020 WL 10574794, *11-12 (C.D. Cal. Mar. 11, 2020); Martin v. Moscowitz, 448 F. Supp. 2d 374, 379-80 (N.D.N.Y. 2006); Wilbur v. Hightower, 778 So. 2d 381, 383 (Fla. App. Ct. 2001)]. It is a psychological ploy called unsubstantiated anchoring, and it can drastically increase noneconomic damages awards.
There are ways to prevent the effect of unsubstantiated anchoring. They start with preventing unsubstantiated anchoring, which starts with educating courts. Unsubstantiated anchoring is not harmless commentary that falls within the wide-latitude generally given for closing argument. If educating the court proves unsuccessful, fighting fire with fire (counter-anchoring) may be the best alternative. Interjecting yet more unsubstantiated argument (counter-unsubstantiated anchoring), though, is risky. New-trial and remittitur motions are the last line of defense.
What Is Anchoring?
According to “The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts,” published in 1996 in Applied Cognitive Psychology, anchoring is “the bias in which individuals’ numerical judgments are inordinately influenced by an arbitrary and irrelevant number.” It is a known phenomenon that has been studied in both court and non-court scenarios.
In the original study on anchoring, after participants spun a wheel rigged to land on 10 or 65, they were asked the percentage of African countries in the United Nations. The participants whose wheel landed on 65 generally gave higher estimates.
Another study had judges roll a pair of dice rigged to yield a three or a nine before giving a hypothetical sentence for a shoplifter. The judges who rolled a nine tended to give higher sentences.
Studies have confirmed that anchoring results in higher damages awards, too. Study participants have been given fact patterns or watched mock trials that differ only in whether and how much the plaintiff asks for in damages. The studies consistently show that the higher the demand, the higher the award. While jurors generally adjust away from the initial anchor, their adjustment is often insufficient because the initial anchor has a significant influence.
A traditional anchor is a lump-sum or time-unit-based (day, hour, minute, etc.) amount that the plaintiff asks the jury to award. Shoot for the moon, land among the stars. That is the basic premise behind anchoring. If the goal is $5 million, asking for $15 million makes it more likely the jury will award $5 million (or more). Better, ask for $25 million and the jury is more likely to go higher still.
Why Does Anchoring Work?
Anchoring works, but, why? Stripped of sophisticated psychological analysis, the answer is, human nature.
The anchoring studies involving non-legal matters demonstrate that it is a phenomenon unrelated to the uniqueness of valuing damages. Arbitrary and irrelevant numbers skew estimates. And there’s a positive correlation, meaning higher numbers skew the estimates upward.
Jurors’ general lack of experience with valuing noneconomic damages plays a role, too. Without past experience, human nature is to give the first piece of information disproportionate weight, and the amount suggested by the plaintiff’s attorney, who jurors presume has experience with such valuation, is often the first piece of information they receive on the amount of damages, so it gets disproportionate weight.
What Is Unsubstantiated Anchoring?
Plaintiff attorneys do not want to come off as absurd—a $1 trillion request is reserved for Bond villains. This is where unsubstantiated anchoring comes in. Unsubstantiated anchoring is “a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case.” (See Gregory, at 670 S.W.3d at 557). It is a species or extension of anchoring.
With few exceptions, paintings, jets, and baseball contracts have nothing to do with a personal-injury case. There is no testimony or evidence about them. So, references to valuable art, jets, and baseball contracts are unsubstantiated. Their purpose is to prepare the jury for a request similar to or below their $100 million price tag; a request in the tens of millions, perhaps.
Unsubstantiated anchors up the proverbial ante. They set an anchor for the traditional anchor. They climatize the jury. Exposing jurors to the concept of hundreds of millions makes a traditional anchor in the tens of millions seem more plausible.
What Can Be Done About Unsubstantiated Anchoring?
There are several arguments against traditional anchoring. While many courts have agreed with those arguments against anchoring, many haven’t.
Unsubstantiated anchoring is a different animal entirely. While attorneys generally have wide latitude during closing arguments, they are still limited to arguing reasonable inferences from the evidence. Arguments unsupported by evidence are improper. Referencing comparable verdicts during closing argument is also impermissible. So, how could an even more inapt analogy to art, jets, or baseball contracts that have no evidentiary basis be appropriate? It’s not. (See Gregory, 670 S.W.3d at 559).
Pretrial motions educating the court about anchoring and unsubstantiated anchoring are particularly important. Despite numerous scientific studies on the effect of anchoring, courts are often quick to dismiss arguments concerning unsubstantiated anchoring as harmless, so it is best to get out in front of the issue and prevent the error from occurring.
If efforts to prevent unsubstantiated anchoring fail, the next best option is counter-anchoring—giving a much lower proposed damage award than the plaintiffs. While counter-anchoring does not completely counteract the plaintiff’s anchor, it has the most significant effect on lowering awards, compared to ignoring the plaintiff’s anchor or attacking it as outrageous. (See “Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments” published in the Iowa Law Review). For example, a defense attorney could ask jurors during voir dire whether they would be willing to award a large amount of money, like $25,000 or even $50,000. That would be a counter-anchor to a $1 million anchor from the plaintiff.
Defense attorneys can suggest a counter-anchor during closing argument, too. Many defense attorneys avoid discussing damages during closing arguments out of concern that jurors could mistake it as conceding liability, however, the Iowa Law Review study referenced above has shown that the concern, while logical, is overstated, if not wrong.
Counter-anchoring is one thing; counter-unsubstantiated anchoring is another. On the one hand, if a trial court is going to allow plaintiff’s counsel to discuss art, jets, and baseball contracts, it seems fair to remind the jury of the cost ordinary life for ordinary people. On the other hand, interjecting error (particularly when your pretrial motion explains that it is, in fact, error) is seldom a good thing and could even be construed as waiver.
The last method for tackling unsubstantiated anchoring are post-verdict motions for either a new trial or remittitur. In Gregory, the Texas Supreme Court reversed a $16.8 million verdict in a case where the plaintiff used unsubstantiated anchoring. The court observed that unsubstantiated anchoring did not “rationally connect the evidence to an amount of damages, [but] did just the opposite by encouraging the jury to base an ostensibly compensatory award on improper considerations that have no connection to the rational compensation of [the plaintiff].” Notably, the court would have ordered remittitur but for other errors requiring a new trial.
Modern society is awash in unfathomably large monetary sums. Government spending is hardly mentioned unless it reaches nine figures. Entire generations have grown up with celebrities routinely making multiple millions of dollars per year. It is desensitizing. Unsubstantiated anchoring exploits that effect.
Of course, multi-million-dollar paychecks aren’t reality for the vast majority of the population. Monetary sums in the millions simply have no bearing on day-to-day life for all but a distinctly small minority. Most people, for example, would be distressed by an unexpected $1,000 bill. And, for many, a $1,000 bill would be financially crippling or disastrous, whether expected or not. Despite inflation and multi-million-dollar numbers splashed on seemingly every news report, $1,000 is still a lot of money.
Multi-million dollar art, jets, and baseball contracts have nothing to do with noneconomic damages. Nothing whatsoever. Yet, over the past decade, they have more-and-more frequently popped up in closing arguments, sometimes with profound effect. Pretrial motions, counter-anchors, and post-trial motions are the tools to prevent or at least mitigate those effects.