Countering the plaintiffs anchor: Jury simulations to evaluate damages arguments

Numerous studies have shown that the amount of a juror's damages decision is strongly affected by the number suggested by the plaintiffs attorney, independent of the strength of the actual evidence ( a psychological effect known as "anchoring"). For scholars and policymakers, this behavior is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). One noted paper even concluded that "the more you ask for, the more you get. " Others believe that the damage demand must pass the "straight-face" test because outlandishly high demands will diminish credibility and risk the plaintiff losing outright. Can defendants effectively rebut an anchor? One strategy is for defendants to offer a "counter-anchor"-a much lower proposed damage award than the plaintiffs. However, defense attorneys worry that juries may interpret such a strategy as a concession of liability. Based on this fear, some defendants allow the plaintiffs anchor to go unrebutted. But this strategy, like counter-anchors, has not been rigorously studied. To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to a shortened medical malpractice trial, manipulated with six different sets of damages arguments in f actorial design.