I recently worked on a federal jury trial where our main objective was damage control: keeping the verdict as low as possible. Plaintiff counsel, of course, wanted to maximize damages, and thus needed the jury to buy in to his damage number as early as possible.
The plaintiff lawyer (knowingly or not), attempted to benefit from the “anchoring affect” during his opening statement.
A bit of background: The anchoring effect is a cognitive bias that causes us to rely on a reference point, or “anchor,” when making future decisions or evaluations. It’s a well-tested psychological phenomenon. We rely on the anchor as a starting point, and because we typically make decisions by comparing one thing to another, we then search for additional clues to help us adjust our decision as needed. Although ever-present, we don’t necessarily recognize the impact of the anchor.
For example, when you’re at the store purchasing a bottle of wine (red, please), an anchor is established when you first examine the price tag. That initial price – no matter how high or low – ultimately influences your final spend. When examining each additional option, you’ll compare its price to the initial bottle. Does it seem fair? Is it overpriced? Within reason? Too cheap to be any good? How does it compare to other bottles that pique your interest? Eventually, you’ll decide how much you’re willing to pay.
Anchoring Effect at Trial
The anchoring effect occurs in the courtroom, too. The most common anchor relates to damage numbers – good old-fashioned dollars. But anchors can be percentages, distances, time, and even rules or guidelines. But for the sake of this post, let’s stick with cash.
In the trial mentioned above, plaintiff counsel repeatedly showed the jury the front page of a report published by a governmental agency. The agency attributed roughly 33,000 deaths a year to a particular industry, at a cost of roughly $871 billion. With some basic division ($871 billion divided by 33,000 deaths), counsel then attempted to establish his $28 million damage request as an anchor point for the jury. With luck on his side, any adjustments would be minor. Makes perfect sense from a mathematical perspective, but was it truly effective?
Yes and no. Here’s why:
Any number – even an arbitrary or completely inaccurate one – can serve as an anchor. About ten years ago, a study was conducted at MIT (Ariely et al., 2016) whereby graduate students were asked to bid on a random group of auction items, including a bottle of wine (see the pattern here?). But before students could submit their bids, they were instructed to write down the last two digits of their social security number. Then, they were asked to decide whether they’d be willing to pay that amount for each auction item. For instance, if a student’s social ended in -12, she had to decide whether the bottle of wine was worth more or less than $12. Only after completing those two random tasks were students allowed to actually submit a bid on the auction items. The results demonstrate just how influential an anchor can be: students who had higher digits were willing to spend 300% more than those who had lower digits! The social security digit “anchors” were completely irrelevant to the bidding process, yet they clearly influenced their decisions.
Using Anchors Effectively
But there’s good news for those who are bound by things like the rules of evidence: findings from a 2015 study indicate that anchor points are more influential when they have meaning to the fact-finders. Tossing a generic number in the air may technically be an anchor, but it may not have much impact.
The $28 million damages anchor did not work out so well for plaintiff, and our attempts at damage control prevailed. The courtroom is like a living organism – there are so many moving parts that factor into juror decision-making that it would be intellectually dishonest to attribute the outcome to the anchor.
But every litigator wants to be as persuasive as possible and there are strategies you can employ to help ensure that the anchors you choose have a little more impact on the decision-maker. Here are some practical suggestions:
- Choose a realistic number.
While any number will have some influence on the decision-maker, if you want to maximize the persuasive power of the anchor, choose wisely. Try to identify an anchor that even opposing counsel would have a hard time arguing with. If the number is perceived as too “out there,” jurors may dismiss the number altogether, at best, and question your credibility, at worst.
- Provide context for the expert source.
The effects of anchoring can have a greater impact if the source is deemed as credible, expert, and reliable. Jurors absolutely need to know the source of the anchor, but just because you think it’s a credible source does not mean your jury will. In an environmental contamination case, citing water quality standards from the ACGIH (American Conference of Governmental Industrial Hygienists) will have a lot more oomph if jurors understand who the group is, why it exists, and what familiar agencies rely on its work (e.g., OSHA, CDC, etc.). Invest a few extra minutes to provide ample context so jurors will trust the source of your anchor.
- Create a connection between the obscure and the ordinary.
Making the unfamiliar familiar is always a challenge in the courtroom. In a products liability case, if the probability of a product malfunction is, at worst, “one in a million,” the anchor sounds compelling, but it has no emotional meaning. But look what happens when you connect the anchor to something more familiar: “The odds of being struck by lightning in any one year are 1 in 700,000, which means you are more likely to be struck by lightning than you are to experience a product malfunction.” That’s memorable. And memorable anchors are more influential.
- Use visuals to punctuate your anchor.
A nice clean graphic can go a long way in making your anchor powerful. Some anchors work better than others, but it is especially important in situations where the numbers are so large (or small) that it’s next to impossible to fully grasp just how large (or small) they are. The brilliant folks at TEDEd created an original animation to connect the obscure “one part per million” with ordinary objects. It’s extremely creative, and worth a watch.
- Know your audience.Certain personality characteristics indicate a greater susceptibility to the anchoring effect. This isn’t a hard rule, but it is something to consider as you evaluate peremptory strikes during jury selection.
- People who feel sad, downtrodden, or otherwise identify themselves as victims are more likely to be influenced by the anchoring effect
- People with specialized knowledge tend to be less affected by anchors. [Alevy et al., 2011]
- People with higher-level cognitive abilities are less likely to be influenced by numerical anchors (although the anchor effect still applies). [Bergman et al, 2010].
- Extroverted, outgoing individuals are less susceptible to numerical anchoring.
(For more on the use of statistics in persuasion, see my recent blog post, The Benefits (and Occasional Perils) of Using Statistics in Trial.)
Like it or not, the anchoring effect influences our daily decision-making, and it can be equally potent in the courtroom. But, as with most things in life, it will have a bigger impact if wielded surgically and mindfully. And above all else, make sure the evidence supports your anchor.
At CourtroomLogic Consulting, we help our clients navigate the invisible forces that influence decision-making. We understand how cognitive biases (like the anchoring effect) and other quirks can be used to our clients’ advantage at every stage of dispute resolution. Contact us at firstname.lastname@example.org for a consultation.