By Dr. Ken Broda-Bahm:
It is a common step in the plaintiff’s voir dire:
Ms. Smith, if you are selected for this jury, and if the evidence proves to you that the damages to my client justify a high figure, like ten million dollars, would you be able to award damages at that level? What about you Mr. Jones, could you commit to being able to give a verdict of ten million dollars if the evidence justifies it?
Of course, that is kind of a circular set-up question, with the phrase “If the evidence justifies it” doing an awful lot of work in a context where potential jurors have heard no evidence. In addition, we know that promises like this aren’t reliable or predictive: Jurors cannot meaningfully say what they would do in a future situation when they currently have almost no information about that situation. Still, a good plaintiff’s attorney will do this for a few good reasons: Planting a high number in the jury’s mind can help to desensitize them to the “sticker shock” and anchor that higher figure down the road, and the question might also flush out a few hard-core anti-damages jurors who can then be removed through a cause challenge or a peremptory strike.
While this is clearly a plaintiff’s tactic, the civil defendant has options other than just sitting by and watching it happen. In front of some judges, of course, those kinds of pre-commitment strategies won’t fly. But when the plaintiff is able to seek those kinds of committments, there are a few ways for the defendant to respond.
Call Out the Lack of Foundation
Of course, as of voir dire, jurors have no actual basis to say what they would or would not award in damages. To highlight that fact, and potentially target opposing counsel’s credibility in the process, consider asking something like this?
At this point, who has seen the evidence in this case? No one? That is correct, because as the judge said, what we attorneys say is not evidence, and you have not heard from any witnesses, you have not seen any documents.
But despite there being no evidence yet, my colleague on the other side just asked who is willing and able to award ten million dollars. Who here feels a little uncomfortable being asked what you will award before you’ve heard a single piece of evidence? I see a lot of hands: Ms. Adams, why don’t you tell us why that feels uncomfortable to you.
Call Out the Plaintiff’s Real Reason
When it comes to cognitive biases, it sometimes helps to make jurors aware of the bias so they might guard against it. As I’ve written recently, anchoring is unfortunately not one of the easier biases to debias against, though, because the research seems to show that it still works even when we’re aware of it. Still, I think it can help in future deliberations to prime jurors toward the argument that they should not uncritically work from a plaintiff’s numbers. One way to do that is to use voir dire to highlight the real reasons that the plaintiff suggests a given number.
I am curious, does anyone have a theory as to why my colleague on the other side is throwing out such a big number before you’ve heard the evidence? Who thinks you might know the reason for that?
That’s right, it may be just to get you thinking of a big number: That’s called “anchoring.”
And in response, I want to ask for a different commitment: The law says that any damages awarded, if they’re awarded, need to be based on the jurors’ analysis of the evidence, and not just based on a number one side or the other has thrown out. Can you commit to doing that: Basing any verdict on the evidence and not on a number you heard?
Spell Out the Counter
Naturally, the goal of anchoring is not unique to plaintiffs, and defendants have an interest in thinking about counter anchors, since the research shows that if jurors do get to the point of awarding damages, then a defendant who counter-anchors will fare better than a defendant who doesn’t. It can be a little harder for defense to do that while at the same time emphasizing the need to base decisions on the as-yet-unheard evidence. But in general terms, at least, a defendant can raise the issue in voir dire.
Knowing that you have not heard the evidence yet, you do nonetheless know that Mr. Evans, the Plaintiff, has been seriously injured — that is a fact that neither side contests.
So that raises a question: If the Plaintiff’s side was not able to prove that any party here is at fault, and/or is unable to prove that any party’s actions caused the injury, that would mean that Mr. Evans would leave with nothing.
That can be difficult for some jurors — even without blame, they would still want a seriously injured person to get something. Who feels like you might be in that category?
And in contrast, who feels that you would be comfortable with an award of zero if that is what the evidence justifies?
Alternately, if the plaintiff does prove liability and cause, who would be comfortable awarding something lower than what Plaintiff is asking for: for example, something that covers his increased concrete expenses, but without making Mr. Evans wealthy?
Of course, from a potential juror’s eye view, the implicit answer to a lot of these lines of questioning will be, “Let’s hear the evidence,” which is a fine response. A defendant’s goal at this stage is to encourage that focus while trying to defuse the effect of any promises regarding a plaintiff’s high anchor.
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Other Posts on Voir Dire:
- The Trump Juries: Adapt Your Procedures for Higher Profile Jury Selections
- Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
- Voir Dire: Create Your Own ‘Candor Script’
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