Take Your Damages Straight Down the Middle

by Dennis Elias

The Middle is the Place to Be

In a recent blog by Ken Broda-Bahm, “When Arguing Damages, “Drop Anchor” Even in Murky Waters“, he discusses Shari Diamond’s recent study derived from the deliberations of Arizona jurors.

“In the real world of trials, is the effect of an anchor as simple and automatic?  Based on a recent analysis of the deliberation content of video-recorded trials in Arizona courts, the answer is “no, not so simple or automatic.”  The research (Diamond et al., 2011) shows while anchoring is a powerful force in deliberations, jurors are also very critical consumers of attorney recommendations, and the supposed biasing effect of damage anchors appears to be overstated.”

Later Ken makes the following recommendation to Plaintiffs:

“1. Plaintiffs, Use Anchors.  It is now common sense among plaintiffs that you should give jurors an anchor number, especially, for the less evidence-grounded general damages categories.  Still it is interesting to note  in one third of the Arizona cases, plaintiffs did not provide an anchor number.  While jurors will not tend to award that number (indeed, the Arizona jurors awarded just 15 percent of plaintiff pain and suffering requests on average), it is still better to begin with a reference point than to leave that to the jurors.  Ironically, the fact jurors will often presume that number to be inflated is a reason to give a higher number to begin with.”

In line with Ken’s Persuasion Strategies blog are some additional recommendations to make your damages case palatable to the typical juror:

A recent study (http://www.eurekalert.org/pub_releases/2011-08/w-lll083011.php) suggests that there is an advantage to anchoring your ad damnum amount to a perceived “middle” point, i.e., express your $$ amount as a range and then emphasize the middle or average of that range as the anchor (expressed as a number). Make sure your “middle” is your opening salvo and that you are prepared to argue damages and present evidence that supports your “middle”. Experience in observing deliberations and discussing damages with focus group jurors shows that this “middling” compromise most often results from the jurors using the opposing damages estimates to compute awards (Solomon’s Gambit). Other research points out that expressing an amount specifically, e.g., $1,699,478.97 conveys legitimacy and a “bargain” over a rounded amount ($1.7M). The specific middle may be the best place to be.

For the Plaintiff, trial is all about conveying persuasive evidence and argument that aids the jurors in coming to a consensus on what amount would fairly and reasonably make restitution. The Trial is About Damages. Packaging your damages in what is eminently digestible is critical to your persuasive success. The Middle is the Place to Be… + .97 cents.

Photo courtesy of http://www.travelblog.org/Photos/5832027

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