Big Damage Awards: A Technique That Drives Jurors Toward Big Numbers

Estimated read-time: 4 minutes

Part 4 in a series on jury decision-making and bias.

By Joani Benoit

When juries are asked to award money for harm to individuals, a significant component of the award may be unrelated to economic damages. These awards are not a matter of simple math.

How do juries make such decisions when the losses are subjective? How does one value a life, or the shortening of a life, or a life in a wheelchair? How does one put a dollar amount on fear, loneliness or the inability to sleep well at night?

While we all know that there are many ways to enhance the sympathy a jury might feel for a plaintiff or to cultivate anger toward a defendant with deep pockets, you may be unaware of one of the most powerful ways to impact a number when the person making the decision has no related knowledge or experience to draw upon. The method is called anchoring, described well in Daniel Kahneman’s book, Thinking Fast and Slow.

Imagine anchoring a sailboat in a bay. You drop anchor after considering the likely direction of drift and the length of your anchor line. Your boat will not hover directly over the anchor, but you will drift only so far. The anchor determines the final position of the boat, once current and wind are accounted for.

Kahnmen and Amos Tversky showed through experiments that decisions and estimates are dramatically impacted by the introduction of non-related data. In the most famous experiment, they rigged a wheel-of-fortune so that when spun it would land on either the number 65 or the number 10. Study participants believed that the wheel was not rigged and had equal likelihood of landing on any number between 1 and 100. After spinning the wheel and generating what they believed was a random number, the participants were asked to answer a question few had any knowledge of: the percent of African nations that were members of the UN.

Even though they believed the wheel spin to be a random event, the study cohort that saw the wheel land on 65 gave an average guess of 45% of African nations as UN members; those who saw the wheel land on 10 estimated an average of 25%. The number the wheel was rigged to show served as an anchor, from which the estimate would drift only so far.

The effect has been repeated in subsequent experiments. German judges reading the rap sheet of a fictional shoplifter gave a sentence averaging 5 months when they rolled dice loaded to land on 3; the judges who rolled dice rigged to total 9 sentenced the fictional shoplifter to 8 months, +60% over the judges in the other group. These judges had an average of 15 years of experience as judges. Remember from my last article the decision fatigue effect that drove the likelihood of a positive parole decision from 0% to 65% depending on time of day. Again we see that even judges are not immune to the flaws in human thinking processes. Their decisions were signficantly impacted, quite literally, by a roll of the dice.

Similar results came with in a test of experienced realtors given the task of estimating the value of a home for sale, and on individuals at a science museum asked to estimate the height of the world’s tallest Redwood. In both cases, the estimates given correlated significantly with an arbitrary number given as a starting point.

Washington plaintiff attorney Paul Luvera used this method in a closing I witnessed. He casually referenced the sale of a work of art he had “just seen in the paper” for $87.2 million. He introduced this figure as part of his musing about how to value something for which there was no substitute. While he also brought in a news crew and told the jury that what they decided that day would be either be long remembered, or if they awarded a token amount, soon forgotten, I believe the reference to the painting had the greatest impact in driving the jury to a sizable award. I believe this not only because Kahneman and Tversky’s work, but because in our jury research we used the same anchoring technique with no television cameras or promises of immortality, and saw like awards.

How can one offset such a strong and easy to employ effect? I have some ideas based in Kahneman’s research that I’d be happy to share with you. If you have a case in which the jury will be asked to give a sizable award that will have a significant non-economic damage component, give me a call! We can discuss your case, talk strategy, and run an affordable jury study that could save your client millions.

And now for something completely different…

Overcoming fear. We can always use a little inspiration. 

1:50 minute video.

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