Thursday, July 24, 2014

Countering the Plaintiff's Anchor: Jury Simulations to Evaluate Damages Arguments

John E. Campbell

Bernard Chao

Christopher T. Robertson

David V. Yokum


Numerous studies have shown that anchoring can have a strong effect on juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led to the maxim “the more you ask for, the more you get.” Still, less scholarly attention has been paid to whether an outrageously high request might undermine the plaintiff’s credibility, adversely affect his or her chances of winning at all. This “credibility effect” may be larger than the anchoring effect.

Likewise, little scholarly attention has considered whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.

To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to the same shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. Plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2 ignoring the plaintiff’s damage demand; or (3) attacking plaintiff’s demand as outrageous and using this characterization to argue that plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.

Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant’s responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.

Wednesday, July 23, 2014

Juror Questions

Long time readers of this blog know that I have am an advocate of allowing juror questions (for previous posts about juror questions go here and here). Well, it looks like the topic is once again in the news. The Boston Globe is reporting that jurors in a Boston federal trial submitted 281 questions for witnesses and lawyers. This large number of juror questions has led the ABA to conduct a poll (or question of the week) on whether or not jurors should be allowed to ask questions. I conducted a similar poll a few years back and was surprised by the number of attorneys who were against the practice. I am hoping that things might have changed. Allowing juror questions goes a long way in keeping jurors from conducting their own research on the Internet. 

Monday, July 21, 2014

Looks Matter, Especially to Jurors

The Tampa Tribune has an interesting article highlighting the efforts by some defense attorneys to make their clients more presentable to jurors. As the article points out, attractive defendants are less likely to be convicted than unattractive defendants. In certain instances, defense attorneys go beyond just putting a suit or some nice clothes on the defendant. For example, some defendants are instructed to put on glasses or use make-up to cover inflammatory tattoos

To read the article in full go here.

Thursday, July 17, 2014

Massachusetts Debating Attorney vs. Judge Conducted Voir Dire

Currently, Massachusetts is considering whether or not to change the way it conducts voir dire. At present, Massachusetts uses judge conducted voir dire. However, the Massachusetts House has passed legislation (H. 4123) to allow attorneys to conduct voir dire. The bill is now being debated in the Massachusetts Senate. It appears that the biggest argument against passing the legislation is increased costs.

To read more about the pros and cons of attorney conducted voir dire go here.

Wednesday, July 16, 2014

Deliberative Democracy and the American Civil Jury

Deliberative Democracy and the American Civil Jury

Valerie Hans

John Gastil

Traci Feller

Civil jury service should be a potent form of deliberative democracy, creating greater civic engagement. However, a 2010 seven-state study of jury service and voting records found no overall boost in civic engagement following service on civil juries, whereas jurors who served on criminal cases did show increased civic engagement following their jury service. This article reports a project that augments the civil jury dataset with information about jury decision rule, jury size, defendant identity, and case type and examines whether specific types of civil jury service influence post-service voting. Taking into account pre-service voting records, jurors who serve on a civil jury that is required to reach unanimity or a civil jury of size twelve are significantly more likely to vote after their service. Jurors who decide cases with organizational as opposed to individual defendants likewise show a boost in voting behavior, as do jurors deciding contract or non-automotive torts cases compared to automotive torts. Limitations and implications for deliberative democracy theory and jury practice are discussed with these findings.