‘Anchors’ are the key to winning the battle for non-economic damages

Richard Plattner learned early in his career that lawyers put their clients at risk when they fail to use “anchors” to help jurors establish a fair value for non-economic damages.

Plattner was trying just his second case as a solo attorney, representing a construction worker who had fallen through some missing flooring and incurred permanent damage to his knee. Plattner laid out the economic damages clearly. His closing was strong enough to move several jurors to tears.

The jury awarded his client the entire $12,000 he requested in economic damages. But they didn’t award him a dime in non-economic damages, perhaps because Plattner never thought to ask.

“The jurors came up to me all excited because they found in my favor,” he said. “But my guy got screwed because of bad lawyering by me. Despite everything I did well, I undid a great deal of it by failing to give them a monetary anchor.”

The lesson is simple: juries get precious little instruction from the courts on how to arrive at a figure for non-economic damages. So it’s up to the lawyers to give them a hand. If they don’t, they risk the result Plattner got.

The concept behind anchors is pretty straightforward: Since there is no equation for determining the monetary value of a lost son, paralyzed legs or the pain caused by severe burns, lawyers have to give jurors some kind of context for assessing the value of these non-economic damages. This is particularly true when the injuries are severe and the monetary request will be large. A person’s eyesight is clearly worth a great deal, but how much is “a lot” – $100,000? $1 million? $40 million?

The number lawyers suggest to the jury is known as an “anchor,” a monetary request that gives jurors a starting point for their deliberations. Many experts believe that that the higher the anchor, the higher the award is likely to be – up to the point when you overreach and offend the jury’s sense of fairness. Then your client will be seen as greedy and the award may plummet dramatically.

So choosing an anchor is a delicate balancing act for attorneys.

But how does a lawyer choose this magic number when the process seems to be more art than science – a complex alchemy of mathematics, psychology and, simply, human intuition?

“It isn’t a science,” acknowledged Richard Gabriel, president of Los Angeles-based Decision Analysis and the current head of the American Society of Trial Consultants. “But there is a scientific methodology to it. And the methodology is identifying the factors that can have an impact.”

Pre-trial

Assessing both the dollar figure and the way you want to lead jurors to that figure is a critical element of pre-trial preparation.

Attorneys and trial consultants say that before the trial starts it’s important to consider all case elements that might affect the damage award. Those factors include the strength of the liability case, witness credibility, the ability of a defendant to pay, and sympathy factors such as whether or not the injuries are visible.

Economic damages also have an impact on potential non-economic damages. If medical costs are $500,000, for instance, jurors might think $30,000 for pain and suffering is paltry.

“The half a million becomes a springboard,” said Gabriel. “So $30,000 doesn’t seem in proportion to the economic losses.”

All of the factors should be seen in the context of helping to either boost or shave the potential award for non-economic damages. If there are multiple corporate defendants, for instance, jurors might be more willing to agree to a multi-million-dollar figure for non-economic damages, whereas they’d be less willing to do so in a case involving a single small business.

Still, arriving at an actual dollar figure is a difficult matter.

Two of Plattner’s cases demonstrate several of the factors that come into play. In a medical malpractice case that is slated for trial this month, a doctor’s errors left Plattner’s client with severe brain damage that affected his memory and sentenced him to a lifetime in a group home with 24-hour care. The client had $3.6 million in economic damages and Plattner intends to ask for an additional $3.6 million in non-economic damages. When he tried the figure in front of a focus group, they appeared “amenable” to it, he says.

“What I did was I talked about the loss of human dignity and the loss of hope and then I said, ‘How can the human loss be worth anything less than the economic cost of keeping him alive?’

Compare that to a second case Plattner tried that involved an automobile rollover that left a woman with multiple broken bones. Four years later when the case came to trial, she had returned to work and none of her injuries was visible. Still, Plattner asked for $2.25 million in non-economic damages, triple the $750,000 in economic damages.

The reason for such a large ratio of economic to non-economic damages, he said, had to do with case facts. During trial, he was able to show that the defense had destroyed key evidence, a factor further compounded by what he called “insulting arguments” that minimized the extent of his client’s injuries. Bloody photographs from the accident scene prompted him to up the request even more. So did the fact that there was a pair of well-heeled corporate defendants.

But the fact that his client appeared relatively normal at the trial prompted him to shave the figure down slightly.

In the end, the jury awarded a total of $1.5 million in total damages to the woman, a figure Plattner said he was happy with.

The strategy of “twinning” economic and non-economic damages, as Plattner plans to do in the first case, makes good psychological sense, according to Dennis Elias, an Austin, Texas-based trial consultant who has worked with Plattner.

“By doing that, you’re giving them a number they have already endorsed, which feeds into the human decision-making process,” he said. “If they’ve already said to themselves, ‘That’s a figure I can live with,’ taking the next step to non-economic damages is not as huge a jump.”

In some cases, a rational analysis of the facts might argue in favor of settling the case before trial.

Edie Greene, a professor of psychology at the University of Colorado at Colorado Springs, described a case that involved a surgeon who was injured in a car accident a few years ago when the vehicle he was riding in went off the road. The defendant driver was an acquaintance of the victim and the two men were among a group of doctors who were on a bicycling trip in the Colorado mountains. The surgeon had a closed-head injury and suffered fatigue that forced him to cut back on his practice. The result was that his salary would fall from about $450,000 to $300,000. He was suing for the difference for each of the five years he was expected to work before retirement.

Greene twice put the case before a pair of focus groups. Both times the jurors had strong negative reactions to the case. They were offended that the surgeon was suing a friend, and showed little sympathy for the notion that he’d have to get by on just $300,000 a year – especially given that he was nearing retirement. The client had refused a significant pre-trial settlement offer, according to Greene.

“But when they showed him the videotape of the mock jury talking about these problems he caved in and agreed to the offer,” she said.

In spite of this experience, Elias counsels against using focus groups or mock juries to determine how much to request in damages.

“Jurors just don’t have the experience assessing non-economic damages in dollar figures,” he said. “What you want to test in focus groups is the argument that allows jurors to best appreciate the losses and best takes them to a place that allows them to comfortably endorse the figure.”

During Trial

Handling damage figures during the trial is a sensitive matter. Elias, for one, believes that many jurors are reluctant to accept the argument that physical or psychological damages to a human being can be accounted for in monetary terms.

That leads many attorneys to speak largely in emotional terms about quality of life, just as Plattner did when he linked the value of non-economic damages to the $3.6 million in economic damages. But because it’s such a sensitive matter, Plattner didn’t name an actual dollar figure, he simply said the damages for pain and suffering are worth “at least as much as” the economic damages.

Meanwhile, the timing of when non-economic damages should be discussed often depends on the elements of the case, such as the extent of injuries and the strength of the liability case.

Plattner said there is no need to hesitate in throwing around large numbers early on if you’re representing, as an example, a plaintiff with dramatic burns over two-thirds of her body. From the start it will be clear to jurors that the case will involve significant money and that the injuries will have a lifelong devastating impact. Similarly, a case in which the defendant does not aggressively dispute liability makes it easier to speak of large numbers for non-economic damages early on in the trial, he said.

“If the defense is talking $5 million and the plaintiff said $7 million, then obviously the numbers are going to be enormous and there’s going to be less resistance to talking large numbers,” he said.

If on the other hand, liability is clearly in dispute, it’s critical to build slowly toward the discussion of non-economic damages.

“Establishing the numbers right up front works pretty well with economic damages,” said Elias. “But I don’t think works well at all with non-economic damages.

“You don’t have a relationship with the jury, they don’t know the story, they haven’t embraced it. If you lay out a number, with non-economic damages you set up a straw man for them to pull the stuffing out of. If they can’t conceive of it because it’s so big, or they can’t embrace it [because they haven't heard the plaintiff's story], it almost demands that they pull the number apart.”

On-The-Fly Adjustments

The damage figures a lawyer comes up with during pre-trial strategy sessions often require adjustment as the trial progresses.

For example, Kentucky-based trial consultant Mark Modlin cites a recent case in Bowling Green, Ky. An 18-year-old female driver suffered brain damage after colliding with a garbage truck that was parked on the wrong side of the road. Bowling Green residents had repeatedly complained about the practice before the accident. At the trial, one resident testified that when she called the New York-based company to complain, the person who took the call said “we’ll park where we damn well please.”

The attorneys correctly guessed that jurors would have a strong reaction to this statement. So they revised their damage request significantly higher, to $27 million, and highlighted the statement in their closing arguments.

“The closing argument was basically, ‘Tell this New York company with your verdict that if they are going to do business in Kentucky and take our money they can’t park where they damn well please,’” said Modlin. “We got to the penny what we asked for. Because there was an anger factor there and they ruined a child’s life, the jury was mad.”

Credibility of witnesses on the stand can also send the value of a case soaring or plummeting.

“You might say, ‘This witness came across really well to the jury, so we might increase our evaluation on damages,” said Gabriel. “Or maybe the damages expert had a glitch on his CV that might potentially reduce our damage assessment by 10 percent. So you’re making these judgments on identified factors that can increase or decrease.”

Other Anchors

The McDonald’s coffee case in New Mexico offers a very helpful example of anchoring. Jurors in the case, which was filed on behalf of a woman who suffered severe burns throughout her genital area, pegged the damage award close to McDonald’s per-day profit on coffee, a figure introduced by the plaintiff’s attorney during the trial. That’s an approach that Elias and many other trial consultants endorse.

“That number allowed the jurors to connect the injuries to a tangible number,” said Gabriel. “If the attorney can build a bridge between something intangible like pain and suffering and something tangible, it gives jurors a good jumping off point.”

At the same time, Plattner argued there are also figures that are better left out of the discussion.

“If there are $4,000 or $5,000 in funeral expenses, I’ll persuade my client not to mention them because I don’t want the jurors to use one of those small numbers as a low anchor,” Plattner said.

Focusing on figures such as that can also allow jurors to deal with sensitive topics without addressing them directly, said Elias.

“How do you talk about a woman being incapable of relations with her husband because of the horror of burns?” he asked. “It’s easier to talk about the profits than the cringe factor of 180-degree coffee burning sensitive genitalia.”

Defense Strategy

On the defense side of the equation, Leslie Ellis, a trial consultant for TrialGraphix based in Washington, D.C., argues that defendants should consider offering a counter-anchor if a realistic assessment of their case leads them to think they might lose on liability.

“It’s tricky and it’s something that takes finesse,” said Ellis. “It should be done with the caveat, ‘We didn’t do this but I wouldn’t be doing my job if I didn’t refute the claim on damages.’”

Others, including Phil Anthony, the CEO of Los Angeles-based Decision Quest, disagree vehemently. He questions jurors’ ability to separate questions of liability and damages.

“That’s kind of like saying, ‘I didn’t steal the hotdog, but if I did, that’s not mustard on my face,’” he said. “Jurors look at that and think, ‘Yeah, right.’

“Let’s say the plaintiff’s position is $1 billion and you say, ‘We think $45 million is OK.’ Well, you may have just lost $45 million on your best day or you may have instilled in jurors the conviction to award the full $1 billion.”

Once the jury gets the case, of course, anything can happen.

“You can sit there and say, ‘Well, the cross was pretty rigorous on this expert’ and ‘boy he threw into question some of the liability issues on this expert and we think it’s going to be problematic,’” said Gabriel. “But ultimately you don’t know until the jury comes back.”

Questions or comments can be directed to the features editor at: bibelle@lawyersweekly.com.

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‘Anchors’ are the key to winning the battle for non-economic damages

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