The lawyer for the plaintiff in a punitive damages case frequently asks the jury to return a particular amount of punitive damages.  Often the requested amount is very large—far more than the plaintiff realistically expects to recover, and certainly greater than the Constitution would permit.

This strategy has a clear purpose:  Suggesting an arbitrary large number sets the jury’s “frame of reference” and anchors its assessment of the proper amount of punishment.  A substantial and mounting body of social science research demonstrates that jurors exposed to high numerical “anchors” return much higher awards—even if those anchors are self-evidently arbitrary, and even if they are presented to jurors as “limits,” “caps,” or “maximums.”  The plaintiff’s request has the effect of starting the jury’s discussion at the suggested level—even if the request bears no relationship at all to the facts or the evidence in the case.

As one of the early pieces on this topic explains, “anchoring” refers to “the bias in which individuals’ numerical judgments are inordinately influenced by an arbitrary or irrelevant number.”  The impact of anchoring on jurors is both demonstrable and substantial.  The seminal book on the subject concluded that “salient numbers, such as a plaintiff’s request for a specific dollar amount, have a dramatic impact on [mock] jurors’ awards” of punitive damages.  That impact persists even when the amounts requested are “erratic and unpredictable.”

One study found that mock jurors who were given the same fact pattern returned widely divergent awards when provided with four different numerical anchors ranging from $100 to $1 billion.  Yetanother found that, even when mock jurors are presented both with identical facts and the same suggested verdict by defense counsel, the jurors awarded more when the plaintiff requested higher damages.

Interestingly, even judges are highly susceptible to numerical anchors.  And it does not matter whether the anchor is presented as a limitation on their discretion, rather than a suggestion.  In a studyconducted by Cornell law professor Jeffrey Rachlinski, a group of Canadian trial judges was asked to assign pain and suffering damages in a hypothetical personal-injury case.  Half of the judges were “reminded” that Canada has a $300,000 statutory cap on pain and suffering damages.  The other half were not given that reminder.  The judges who were told of the cap awarded an average of about $100,000—twice as much as the other group.

The anchoring problem is particularly acute in the punitive-damages context, for a couple of related reasons.  First, plaintiffs’ lawyers tend to be cautious about making outsized requests forcompensatory damages, because setting compensation is something that is within the jury’s expertise; asking for $20 million in compensation for a minor injury raises the risk of alienating jurors and brings to mind the adage that “pigs get fat, while hogs get slaughtered.”  But plaintiffs seem to exercise less caution when it comes to punitive damages, which (for reasons we will explore in other posts) are further outside the range of jurors’ experience.

Relatedly, asking a jury to award a large amount of punitive damages can be like throwing a lit match into a haystack.  When jurors sit down to assess the amount of punishment, they generally have already determined that (1) the plaintiff was injured by the defendant’s tortious conduct, and (2) the defendant’s conduct met the applicable state-law standard for the imposition of punitive liability.  At that point, the jurors likely have a fairly negative view of the defendant.  If the defendant is a large corporation, the jurors likely have also heard evidence of its extensive financial resources (more on this, too, in another post).  If their deliberations are then anchored by an eight-figure request from the plaintiff, the defendant is facing a very serious risk of an unconstitutionally excessive award.

Indeed, the anchoring strategy can be very effective even if the jury does not view the defendant’s conduct as being terribly blameworthy.  We worked on a case many years ago in which the plaintiff asked for an enormous punitive award, and the jury awarded half of the requested amount—which was still grossly excessive.  In subsequent interviews one juror remarked: “We didn’t think the defendant was really so bad, so we gave the plaintiff only half of what he was asking for.”

What can defense counsel do to prevent, or at least mitigate, this problem?  First, you can file a motion to preclude the plaintiff from asking the jury to award any specific amount of punitive damages, or (in the alternative) any amount that would be unconstitutionally excessive.  In a bifurcated case, the amount of compensatory damages is known prior to the punitive phase; if the compensatory award is not wildly excessive, the motion might ask the judge to preclude plaintiff’s counsel from asking for more than a single-digit multiple of that amount, for example.   Substantive support for such relief is provided by State Farm, where the Supreme Court explained that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  And the procedural underpinning comes from Williams, where the Court explained that “a court, upon request, must protect” a defendant from an “unreasonable and unnecessary risk” that a jury will impose punitive damages on an improper basis.

Failing that, you might consider offering the jury an anchor of your own.  In some cases, defense counsel asks the jury to award zero in punitive damages.  This can be effective if the conduct took place a long time ago; the defendant has new policies in place to prevent the conduct from recurring; and the jury instructions state that the jury has the discretion to award no punitive damages even if it finds the punitive-liability standard to be satisfied.  If the case is bifurcated and the compensatory award is reasonable, the defendant may be well served by asking the jury to award the same amount in punitive damages, perhaps invoking the court’s instruction that any punitive award should bear a reasonable relationship to the plaintiff’s harm.

The appropriate strategy will depend on the facts of the particular case; the key is to be aware of the anchoring phenomenon, and prepared to address it through legal arguments, trial strategy, or both.