The Use of Defense Damage Anchoring to Combat Nuclear Verdicts

The fear of the nuclear verdict is real, and as some commentators have noted, it leads to overpaying or nuclear settlements.

The topic of nuclear verdicts (and the more recently coined “thermonuclear verdict”) has dominated the defense bar’s conversation for years now. It’s defined here as a verdict that has an exceptionally high damages award, exceeding what is a reasonable or rational monetary amount for that particular case. The fear of the nuclear verdict is real, and as some commentators have noted, it leads to overpaying or nuclear settlements.

The Philadelphia Court of Common Pleas recently released a study showing an uptick in plaintiff verdicts as well as million-dollar verdicts since the pandemic. Our research shows jurors all too often believe their role is to be a guardian of the community and send a message to bad corporate actors. Thus, the idea of verdicts that exceed traditional damages analysis is not surprising. So, what is a defense counsel to do?

Damages Anchoring Strategy

Consultants are recommending that in order to level the playing field, the defense bar needs to address damages more directly with jurors. Commonly referred to as damage anchoring, this strategy has been shown to not only lower damage verdicts but also simultaneously challenge the plaintiff’s claims. Historically, the defense bar has been wary of providing a counter-damages figure, believing that doing so would confuse jurors on liability issues and provide a minimum floor for a jury award. Research shows that, when done properly, the use of a defense damage anchor is an effective and sensible tool to combat nuclear verdicts. However, like any trial strategy, there are pros and cons to consider. Here are some of the advantages and disadvantages of defense damage anchoring at trial.

In keeping with the traditional defense approach to damages, attorneys decide whether to aggressively work up a damages defense or anchor based upon the likelihood of a plaintiff’s verdict. However, the plaintiffs bar has been honing anchoring techniques for years. By discussing large sums that they will seek during voir dire or referencing huge corporate profits or market share, they are essentially providing a high anchor. It seems at times that in today’s courtroom, the plaintiff really cannot ask for too much. While jurors will often scoff at the requests and deem the figures as excessive, overblown, or even ridiculous, the fact is that when the plaintiff suggests a higher number, we typically see a higher award. The plaintiff may lose some credibility by putting such large figures before a jury, but at the end of the day, the figures are often still considered (and worse, outright accepted) without a counter-figure from the defense. Left unchecked, these numbers can easily resonate with jurors and often leave them feeling that the choice is the plaintiff’s damages number or zero. The defense bar needs to address these high anchors and prime the jurors for the fact that if there is a finding of no negligence, then no damages is also an appropriate verdict. Don’t let the plaintiff control the damages aspects of a case from the start.

Don’t wait until the last minute. When it comes to damages, plaintiffs begin working up those aspects of the case early on in the litigation lifecycle and will either reference or present a high damage anchor. While cases evolve during discovery, the defense should be more assertive and proactive—and less reactionary—during discovery. Further, fully working up a damages defense allows for the defense to be more aggressive during discovery, mediation, and settlement position. Consider your damage theories and defenses early, not just as trial approaches.

Arriving at a counter-damage anchor cannot just be randomly determined based upon one’s gut feelings, though. The counter-anchor needs to be seen as credible and reasonable by jurors. When it’s done incorrectly, jurors can get angered at perceived “low-ball offers.” Figures need to be meaningful to jurors. Likewise, counter-anchors must take into account the legitimacy and seriousness of plaintiff’s injuries. Aggressively challenging damages without proper evidence can cause jurors to view the defense unfavorably. It is crucial to support the damage anchor tactically but also, when necessary, with sensitivity. The perception that the defense is attempting to undermine legitimate claims or downplay the seriousness of harm can negatively impact the defense’s credibility and overall case.

Challenging damages with a defense damage anchor can not only bring into question the validity of the damages claimed by the plaintiff but also shift some focus. Defense damage anchoring can redirect the jury’s attention away from the plaintiffs’ large claims of damages and toward causation, contributory negligence, and liability issues. Defense damage anchoring can also leverage themes of reasonableness and proportionality by allowing defense attorneys to argue that the damages sought are extreme, unreasonable, or disproportionate to the alleged harms suffered.

As noted earlier, the use of damages discovery to support a damage anchoring strategy can also potentially reduce liability exposure. Effectively challenging aspects of the plaintiff’s damages can also lead to the reduction of the defendant’s potential liability. Lower settlements or decreases in damages can result. Moreover, employing defense damage anchoring can lend itself to arguments that the plaintiff did not take reasonable steps to mitigate their own injuries or reduce their losses, which can also lead to reduced jury awards.

It’s important to note that the effectiveness of defense damage anchoring at trial will depend on the specific facts of the case, the strength of the evidence, the skill of the defense attorney, and the persuasiveness of their arguments. Each case is unique, and the strategy employed should be carefully tailored to the circumstances and goals of the defense.

Getting Started

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