Free Virtual CLE: Damages Anchoring

December 14, 2022 @ 4:00PM ET (1:00PM PT)

1.00 GENERAL CREDIT

This CLE presentation discusses the proliferation of nuclear verdicts around the country, some of the psychological reasons behind such verdicts, and provides practical advice for defendants as to how to avoid being on the receiving end of a nuclear verdict. Traditional versus new and recommended defense approaches to damages will be discussed – specifically, the concept of low anchoring – supported by academic research as well as jury research case studies.

• There is a quite a bit of psycho-legal research on the tangible and powerful impact of anchoring with damages figures, and that research is consistent that when a defendant suggests a low anchor figure to counter the high demand from a plaintiff, this more often than not results in a lower total damages award than when the defendant does not put forth an alternative figure.
• The concern defendants share about offering an alternative damages number is that doing so will undermine their liability defenses. In other words, if a defendant vehemently denies liability (such that the plaintiff’s damages should be nil), but then suggests an alternative damages figure, do jurors infer that the defendant does not actually believe in its own liability defenses and in fact agrees it should pay some amount of damages.
• Magna’s consultants have researched this issue using nationwide surveys over the past two years, and prospective jurors around the country are evenly split as to whether they feel a defendant loses credibility when offering a counter figure or whether they understand this is a necessary part of the trial process and has nothing to do with a defendant’s belief in its own liability defenses.
• Despite jurors’ mixed reactions to this defense strategy of low anchoring, research has not demonstrated an increased chance that a jury finds liability when a defendant presents an alternative number versus when the defendant does not suggest a counter figure. If there is no predictable effect on a finding of liability, then the answer for most defendants is to offer the lower number, because the research is clear that verdicts are significantly lower in the presence of a low anchor from the defense versus when defendants do not proffer an alternative number.

MODERATED BY:

Rachel York Colangelo, National Managing Director of Jury Consulting, Magna Legal Services

PANELISTS INCLUDE:

• Tera Sherman Edwards, Esq., Partner, Lewis Brisbois Bisgaard & Smith
• Caryn Siebert, Director, Carrier Practice, Gallagher Bassett
• Aileen R. Schwartz, SVP, Senior Corporate Counsel US and Privacy Officer, Hill International
• and more to be announced!

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