• unlimited access with print and download
    $ 37 00
  • read full document, no print or download, expires after 72 hours
    $ 4 99
More info
Unlimited access including download and printing, plus availability for reading and annotating in your in your Udini library.
  • Access to this article in your Udini library for 72 hours from purchase.
  • The article will not be available for download or print.
  • Upgrade to the full version of this document at a reduced price.
  • Your trial access payment is credited when purchasing the full version.
Buy
Continue searching

Effects of counter-anchoring damages during closing argument

Dissertation
Author: Tina L. Decker
Abstract:
Research shows that a plaintiff's use of a dollar amount during closing argument can cause a jury to experience a distinct cognitive phenomenon called anchoring. The robust effect of anchoring has repeatedly demonstrated that the more plaintiffs request in damages, the higher the amount of compensatory damages awarded by subjects. Interestingly, researchers and practitioners alike have suggested, "there is no effective counter-anchor for defense counsel to offset the effect of the plaintiff's anchor." For the civil defense attorney, any monetary amount assigned to damages functions as a counter-anchor to the amount given by the plaintiff. The purpose of this investigation was to explore the effects of counteranchoring plaintiffs' compensatory damage requests during closing argument on juror decision-making, liability judgments and damage awards. For this study, the selective accessibility model was used as an overall theoretical reference. It was hypothesized that if the accessibility of anchorinconsistent knowledge (or an alternative award amount pro-offered by the defense) is increased, this knowledge (or alternative award amount) should be equally used to make the final estimate and reduce the effects of the easily accessible anchor offered by the plaintiff. Hence, counter-anchoring damages or providing anchor-inconsistent information may prove to substantially reduce the biasing effects of an uncontested damages anchor. After reading a case scenario and a plaintiff's closing argument, subjects were exposed to a defense closing argument that included either a zero, moderate, or high counter-anchor. The results of the present study indicate that both liability and award determinations were unaffected by the defense attorney's award recommendation, or counter-anchor. Although liability determinations were presumed to be unaffected and indeed were, it was predicted that award size would be influenced. Specifically, the linear increase in compensatory awards that was hypothesized across the study's three damage award conditions failed to emerge. Finally, it was hypothesized that the nonexistent damages counter-anchor (control) condition would produce the highest compensatory awards. No significant differences between the conditions were found. Explanations, study limitations, theoretical and practical implications, and suggestions for future research are discussed.

viii TABLE OF CONTENTS CHAPTER ONE:INTRODUCTION ……………………………………………..1 CHAPTER TWO:REVIEWOF THE LITERATURE …………………………...6 The Role of Closing Arguments in Juror Decision Making ……………….6 Arguing Alternative Damages ……………………………………………..8 Anchoring ……………………………………………….……………...….13 Anchoring in a Legal Context ……………………………………………...16 Selective Accessibility Model ……………………………………………..23 Definition of Terms ………………………………………………………..24 Research Question &Hypotheses …………………………………………25 CHAPTER THREE:Experimental Methods and Procedures …………………….28 Subjects …………………………………………………………………….28 Stimulus Materials …………………………………………………………28 Procedure …………………………………………………………………..31 Pilot Testing ………………………………………………………………..31 CHAPTER FOUR:RESULTS ……………………………………………………33 Liability and Causality Judgments …………………………………………33 Compensation ……………………………………………………………...35 Compensatory Damages Rationale ………………………………………...37 Assessments of Responsibility …………………………………………….38 Strongest Evidence of Arguments …………………………………………39 CHAPTER FIVE:DISCUSSION AND CONCLUSION ………………………...41 Implications ……………………………………….………………………..45 Study Limitations ………………………………………………………….46 Directions for Future Research …………………………………………… 49 REFERENCES …………………………………………………………………….51 APPENDICES ……………………………………………………………………..58 Appendix A:Case Scenario ……………………………………………….58 Appendix B:Control Condition:Nonexistent Damage Counter-anchor …63 Appendix C:Condition 1:Zero Damage Counter-anchor ………………..66 Appendix D:Condition 2:Moderate Damage Counter-anchor …………..69 Appendix E:Condition 3:High Damage Counter-anchor ………………..72 Appendix F:Jury Instructions ……………………………………………..75 Appendix G:Background Questionnaire ………………………………….77 Appendix H:Verdict Form………………………………………………..78 Appendix I:Informed Consent ……………………………………………80 Appendix J:Defense Authorization for Plaintiff Damages ……………….81

ix LIST OF TABLES Table 4.1:Negligence and Causality Assessments …………………………………34 Table 4.2:Compensatory Damages Mean Awards …………………………………36 Table 4.3:Compensatory Damages Mean Awards …………………………………37 Table 4.4:Compensatory Damages Rationale …………………………………..…38 Table 4.5:Assessments of Responsibility Totals &Percentages ……………..……39 Table 4.6:Assessments of Responsibility Combined Scale Totals &Percentages…39

1 Chapter One: Introduction Arguing damages evidence in the closing argument of a civil lawsuit can pose a dilemma for defense counsel. It is a certainty that the plaintiff’s counsel will argue damages in closing, and indeed may spend the majority of his/her time doing so. And why not? Research has repeatedly demonstrated that the more damages sought by plaintiff counsel, the more awarded (Chapman & Bornstein, 1996; Hinsz & Indahl, 1995; Malouff & Schutte, 1989; Raitz, Green, Goodman, & Loftus, 1990). The natural inclination and duty of defense counsel is to thoroughly and persuasively counter the plaintiff’s closing argument. Yet, arguing damages in closing presents certain risks for defense counsel. Defense lawyers who are uneasy about challenging the plaintiff’s damages demand during closing have noted several risks. First, defense lawyers fear that the jury will consider any damages argument by them to be a tacit concession of the liability issue (Keeton, 1954; Johnson & Abel, 2001). Second, simply discussing the issue draws unwanted attention to the topic. Third, by offering an alternative figure, the defense runs the risk of providing a floor to damages (i.e., the jury may have awarded less had the defense not suggested a higher award) (Stern, 1991). Finally, some lawyers fear that addressing the issue of damages may seriously undermine their credibility with jurors (Frederick, 1996; Johnson & Abel, 2001; Johnson & McDonough, 2001; Keeton, 1954). There are, however, defense lawyers who believe otherwise and in fact argue that the failure to respond to damage demands borders on malpractice (Montgomery,

2 1989). These lawyers believe that should the jury find liability, the plaintiff’s view and amount of damages is the only argument and numbers available for jurors to reference. By providing the jury with no figure, defense counsel forfeits the opportunity to provide guidance to jurors to counter the plaintiff’s numerical request. Moreover, research suggests that juries’ causality ratings are influenced by the plaintiff’s requests for compensation and thus, the lack of a persuasive defense damages counter-argument is foolish (Chapman & Bornstein, 1996). In addition, uncontested plaintiff award arguments have consistently been shown to systematically influence awards no matter how irrelevant the amounts (Chapman & Bornstein, 1996). Finally, if jurors are offered nothing in response to the plaintiff’s damages arguments, they may perceive a defense concession anyway. Specifically, jurors may regard the defendant’s silence as acceptance of the plaintiff’s figures. Thus, many defense lawyers believe it is imperative to address plaintiff’s damages arguments during closing. Given, the two opposing positions, how then should defense counsel approach closing arguments regarding damages? Although two studies examine the effects of award recommendations from both the plaintiff and the defense, both studies failed to explore the effects on jurors’ estimates of liability (Marti & Wissler, 1997; Marti, 1999). Thus, no one research study has sought to answer this question. Support for such a study can be found, however, in the literature that consistently shows the influence of the plaintiff’s compensatory request on jury awards.

3 Research shows that a plaintiff’s use of a dollar amount during closing argument can cause a jury to experience a distinct cognitive phenomenon called “anchoring” (Hinsz & Indahl, 1995; Markovsky, 1988; Matz & Hinsz, 1997; Robbennolt & Studebaker, 1999). Anchoring is defined as “the bias in which individuals’ numerical judgments are inordinately influenced by an arbitrary and irrelevant number” (Chapman & Bornstein, 1996). An anchor is thus a salient numerical reference point that influences judgment. 1 For this study, anchor is defined as the plaintiff’s damages recommendation. Research has consistently shown a positive correlation between a number suggested and the ultimate number chosen by subjects (Chapman & Bornstein, 1996; Hinsz & Indahl, 1995; Malouff & Schutte, 1989; Zuehl, 1982, reported in MacCoun, 1993). Researchers and practitioners alike have suggested, “there is no effective counter-anchor for defense counsel to offset the effect of the plaintiff’s anchor” (Rushing, Lane, & Bosman, 2003). A counter-anchor is defined as an alternative salient numerical reference point that may influence judgment. It is another standard which decision makers can rely on to make decisions. However, in this context and for this study a counter-anchor is defined as another award amount or award standard (defense rebuttal amount) on which jurors can rely to justify and render an award (target) figure.

1 This definition is quite different than that defined by Social Judgment Theory as one special position that a person finds the most acceptable within their latitude of acceptance or zone of positions one accepts.

4 Purpose of the Study The purpose of this investigation is to explore the effects of counter-anchoring plaintiffs’ compensatory damage requests during closing argument on juror decision- making, liability judgments and damage awards. The anchoring bias has been suggested to affect jurors’ numerical judgments (awards) (Chapman & Bornstein, 1996; Hinsz & Indahl, 1995; Malouff & Schutte, 1989; Marti & Wissler, 1997; Zuehl, 1982). These studies, however, have only exercised the plaintiff’s right as opposed to both parties’ equal right to present and suggest an award figure to jurors. Similarly, two studies have examined the effects of varied award recommendations from both the plaintiff and defense; however in both experiments liability had previously been decided in favor of the plaintiff (Marti & Wissler, 1997; Marti, 1999). Although numerous studies have demonstrated the anchoring bias using the plaintiff’s damages request as the “anchor,” it appears that there is no single study that has researched the effect of a defendant’s use of a “counter-anchor” on juror judgments of liability and damages. Empirical research is needed to examine these effects. Significance of the Study It is indisputable that in order to prevail at trial litigants must be skillfully and zealously represented. To do this, attorneys often rely on their education, past litigation experiences, gut-instinct, legal precedent, and the advice of peers. Many attorneys are also looking to an ever-growing body of juror research to assist them at trial. Fortunately, for plaintiff attorneys, the question of whether or not to argue damages is most likely affirmed from each of these sources. The only question for

5 these attorneys is what ad damnum amount would maximize the damages awarded. For the civil defense attorney, however, the answer is not as simple or obvious. Practical concerns such as the acknowledgement of liability versus the unpredictability of an undisputed plaintiff's figure exist. Nonetheless, the only guidance jurors are given in regard to an amount that would sufficiently restore victims of tortious injury to the position they were in before the injury are the figures offered at trial (Saks et al., 1997). Chapter Two consists of a review of the literature concerning the role of closing arguments, arguing alternative damages, anchoring, anchoring in the legal arena, and explanations of the anchoring effect as suggested by the selective accessibility model. The chapter concludes with hypotheses for the present research. Chapter Three reports the experimental methods used in the design of the study. Chapter Four presents the research results and data analyses. Chapter Five includes a discussion of the research results, the conclusions that can be drawn from the experiment, a brief discussion of the possible limitations of the study, and suggestions for future research.

6 Chapter Two: Review of the Literature This review of the literature presents research findings relative to the topic of counter-anchoring damages during closing argument. The following areas are presented and reviewed: 1) the role of closing arguments; 2) arguing alternative damages; 3) anchoring; and 4) anchoring within a legal context. Finally, the selective accessibility model, the theoretical framework for the study, is discussed. The Role of Closing Arguments in Juror Decision Making The closing argument, or summation, affords lawyers an opportunity to address the jury with more freedom than in any other segment of the trial. That is, it is the first time litigators are given wide latitude to openly argue the merits of their case. Although there are limitations to this freedom, such as the introduction or assertion of a new fact, misquoting, prejudicial slurs, etc., it is the only time during a trial counsel is given an open platform in which to convince the jury that a verdict in favor of their client will result in justice having been done. Moreover, it is also the last opportunity counsel is given to arm friendly jurors with evidential and argumentative weapons before deliberations. It is, therefore, not too surprising that many legal scholars herald the closing argument as the most consequential component of the jury trial. As Vincent Bugliosi (1984) writes, “In my opinion, final summation is the most important part of the trial for the lawyer.” Even the Supreme Court has commented on its value. In a majority opinion, it stated, “no aspect of [trial] advocacy could be more important than the opportunity finally to marshal the

7 evidence for each side before submission of the case to judgment.” 2 While the dispute, which endures in the literature concerning the degree of its importance, remains unresolved, the closing argument is undoubtedly a substantial feature of the jury trial. Although there is little information available concerning the quantifiable importance of the closing argument, its ability to synthesize trial information and respond to arguments forwarded by the opposition makes it an influential phase of the trial process. Indeed, in one of the earliest studies investigating jurors’ reactions to closing arguments, the authors found that the closing was an “important” stage of the trial that affected juror opinion (Weld & Danzig, 1940). As such, the ability to interpret and comment on the various trial issues allows attorneys great power to persuade and affect jury verdicts. As noted earlier, the closing argument also affords the civil defense attorney the opportunity to respond to plaintiff’s damages. Commenting on the importance of closing argument to the lawyer, Kassin and Wrightsman (1988) write, “With the evidence having been presented, they may interpret it, comment on the witnesses, raise doubt about the opponent’s case, and develop a theory to account for the events in question” (p.103). With this freedom and knowledge, the defense attorney is also in the best position to select and implement an argument/message that frames damages in the most advantageous, persuasive and compelling light for his or her

2 Herring v. New York,422 U.S. 853 (1975)

8 client. Thus, from both a theoretical and practical standpoint investigating compensatory damage counter-anchors during closing argument makes sense. Arguing Alternative Damages Just as jurors must make judgments of each party’s evidence during the course of trial, attorneys must evaluate the strengths and weaknesses of their case. Although an attorney may have incorrectly judged the degree of beneficial and/or deleterious effect of the evidence before trial, he or she is given the opportunity to reevaluate prior to his or her closing argument. Once this is done, the attorney is more adequately armed to make strategic summation decisions. In a civil trial, however, one such decision plagues the defense attorney – responding to plaintiff’s damages. Since most civil actions involve pleas for, and defenses against the award of, monies, a substantial amount has been written on the issue of damages. Unfortunately for the defense lawyer, most advice concerning the issue of damages during closing argument is anecdotal and/or speaks only to the plaintiff lawyer. Providing anecdotal advice for the defense lawyer, Abel (2001) argues “irrespective of the strength or weakness of the liability defense, jurors perceive the sponsorship of an alternative damage figure as a concession of liability” (p. 16). Conversely, Huber and Iwan (2001) argue “for many years the prevailing wisdom was for the defense to never suggest a damages number to the jury in anticipation of an adverse verdict… Defense attorneys today take a great risk in clinging to this ancient wisdom… If they [jurors] are offered nothing in reply, they often perceive a defense concession to the accuracy, and perhaps righteousness, of the plaintiff’s

9 request for compensation. The defense cannot score points if it never shoots the ball into the basket” (p. 32). Valuable to the plaintiff lawyer, Malouff and Schutte (1989) found “that when more money was requested for damages by the plaintiff’s attorney, the jurors awarded more” (p. 495). Similarly, Chapman and Bornstein (1996) concluded that “plaintiffs would do well to request large compensation awards” (p. 519). Although less empirical, more general yet consistent advice for plaintiff’s counsel, Gerald Taylor (2006) advises “the bottom line concerning damages is that you must ask for them. Don’t assume that the jury knows what is an appropriate verdict amount. Give them some frame of reference to show that a significant damage award is warranted and ask for it” (p. 5). In his article outlining his recipe for closing arguments, Henry Wallace (1995) wrote “emphasize damages, damages, damages. Now is the time for a great fund-raising speech” (p. 64). Similarly, Gonzalez (1999) advises “for the plaintiff, this is an extremely important part of the closing argument and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages” (p. 3). From creating the most jury-tolerable figure to the amount of time counsel should spend on damages, the summation literature is full of persuasive strategies and tactics for the plaintiff lawyer. While the rationale to argue damages is clear for the plaintiff lawyer, those who represent civil defendants are forced to rely primarily on trial and error experience and gut-instinct.

10 In courtrooms around the country, defense attorneys are testing three basic approaches to damages in their closing argument. First, some attorneys refuse to confirm their adversary’s position (Broeder, 1959; Greene, 1989; Johnson & Abel, 2001; Johnson & McDonough, 2001; Sobus & Laguzza, 2000). The contention is that to ignore or to remain silent communicates to the jury that they, defense counsel, find the plaintiff’s damages request irrelevant, excessive, and/or unworthy of the time and effort involved in responding. Moreover, they do not run the risk that the jury will consider their damages argument as a tacit concession of the liability issue. Some defense lawyers recommend that you never discuss damages in closing. These lawyers believe that arguing that the defendant is not responsible for the plaintiff’s injuries, and then proceeding to discuss the extent of the plaintiff’s injuries is troublingly disingenuous. These attorneys believe that the jurors will be troubled by the inconsistency as well, and simply assume that you are not as confident in your liability argument as you would have them believe (Johnson & McDonough, 2001, p. 132). “And perhaps the most dangerous situation of all is when defense jurors feel betrayed by the defendant’s offer of an alternative number. As odd as this may seem, it is the strongest defense jurors who very frequently say the defense’s decision to offer alternative damages directly undermined their faith in the defense case” (Sobus & Laguzza, 2000, p. 513). However, “where there is a substantial probability that liability will be found against your client, the strategy of ignoring damages and focusing on liability may no longer be viable” (Johnson & Abel, 2001, p. 7).

11 Second, others believe that a brief mention of the unreasonableness of other side’s numbers is the best approach. Lagarias (1989), for example, insists defense counsel must respond to plaintiff’s arguments on damages. “Defendants also need to respond to damages arguments. A frequent concern is whether discussing damages will appear to be an admission of liability. To the contrary, one may develop a clear statement that ‘we must respond to plaintiff’s contentions, and while we do not for one minute concede liability, we must comment on plaintiff’s argument for damages’” (Lagarias, 1989, p. 141). Similarly, Abel (2001) contends “there are strategic ways to address damages without undermining your position on liability” (p. 17). In addition, by avoiding any concession making on damages the defense may be perceived as unwavering and consistent with their theme of no fault. Yet, in an effort to show the unreasonableness of the plaintiff’s damages, the defense attorney runs the risk of creating a new damages figure that may be considered as endorsed by the defense. As such, it may be perceived as an admission of liability or at the very least partial responsibility. Third, still others have countered plaintiff’s damages with a credible, lower alternative figure of their own. Attorneys are professional negotiators. It is their nature to respond to arguments/demands forwarded by the opposition. Thus, they may feel compelled to respond to plaintiff’s damages arguments as they would with other contentions raised by the plaintiff such as conflicting medical evidence. Moreover, persuasion studies have revealed that two-sided arguments are more persuasive than one-sided arguments. McGuire and Papageorgis (1961) argue that

12 two-sided messages are not only more persuasive than one-sided arguments but also enhance speaker credibility and produce greater resistance to subsequent persuasive messages from the opposition. Thus, by refuting plaintiff’s damages with their own justified damage amount, defense attorneys may divert impressions of bias, ignorance and/or apathy in that they considered the weaknesses in their own case. Referring generally to closing arguments, Rieke and Stutman (1990) contend, “Attorneys should not only provide arguments in support of their client’s position but should also raise and refute arguments harmful to that position” (p. 208). Another prevalent rationale for providing a damages figure is that it provides the defense with an opportunity to demonstrate to the jury that they sympathize with the plaintiff’s predicament and care about being fair and decent. Finally, defense attorneys may argue for a specific damage award because trials by jury are dangerous and difficult to predict. Therefore, in an effort to minimize risk, an attorney may believe a concession will help decrease the gamble and amount of financial losses while increasing his or her ability to predict an outcome range. Such a tactic may provide jurors with an alternative starting point in which to discuss the issue of damages. That is, jurors may believe it is all right to negotiate damages amongst themselves rather than feeling tied to an all or nothing verdict. While some attorneys may believe the most appropriate reply to the plaintiff’s damages argument may be silence or ignoring the issue during closing arguments, others contend providing a “floor” for damages is the most potent strategy to employ. Whichever damages avenue the defense attorney feels compelled to travel in closing

13 argument, he or she does so only after thorough evaluation of his or her case and the temper of the trial (e.g., luck of the draw with jurors, the judge’s decisions, witness success on the stand, etc.). For example, since all witnesses have testified, the attorney can make an evaluation as to the effectiveness of one or more witnesses. If the attorney originally held one witness’ testimony as crucial to the case and is concerned after evaluation, he or she may decide to take a risky position on the issue of damages and offer some amount of monetary concession. Conversely, if the witness performed splendidly and the defense attorney is confident that his case is strong, he may ignore plaintiff’s contentions maintaining no fault and no responsibility. However, how should defense counsel frame and argue damages in a balanced case? That is, a trial in which, after all the evidence has been presented, both sides’ cases remain equally strong. For the civil defense attorney, any monetary amount assigned to damages functions as a counter-anchor to the amount given by the plaintiff. While the plaintiff’s anchor remains constant, the context by which damages are approached by the defense varies, which may in turn affect the jury’s decision concerning liability and monetary award. The persuasive strategy of counter-anchoring damages may influence juror judgments, causing jurors to process the information quite differently than they would have otherwise. Anchoring The anchoring heuristic was first conceptualized by Amos Tversky and Daniel Kahneman. In their classic study (1974), subjects were asked to estimate whether a

14 number that resulted from spinning a wheel was more or less than the percentage of African countries in the United Nations and then to provide what they believed was the correct percentage. Guesses were substantially lower if they began with a low anchor (the spinning wheel number) than if they began with a high anchor. Since this early study, the influence and robustness of the anchoring effect has been shown in numerous judgmental settings (Mussweiler et al., 2000) from estimating the age of Gandhi (Strack & Mussweiler, 1997) to determining listing prices for houses (Northcraft & Neale, 1987). Anchoring has been shown, for example, to occur even if the anchor values are uninformative for the target value/estimate and randomly generated (Tversky & Kahneman, 1974), implausibly extreme (Strack & Mussweiler, 1997), and independent of the participants’ expertise (Northcraft & Neale, 1987). More importantly, instructions to correct for a potential influence and explicitly forewarning subjects of the potential bias of the anchor have not been shown to diminish the effect (Wilson et al., 1996; Marti, 1999). However, research has suggested that increasing the accessibility of anchor-inconsistent knowledge reduces the magnitude of the anchoring bias (Mussweiler et al., 2000). Mussweiler, Strack, and Pfeiffer (2000) reported on how to overcome the effects of anchoring. The authors defined anchoring effects as “the assimilation of a numeric estimate to a previously considered standard” (p. 1142). Anchoring effects have been shown to be reduced through the application of a consider-the-opposite strategy. It is hypothesized that since anchoring effects are increased when the accessibility of anchor-consistent knowledge is increased, then anchoring effects

15 would be decreased when the accessibility of anchor-inconsistent knowledge is increased. Thus, when reasons why an anchor is inappropriate are generated, the effect of the anchor would be decreased. Mussweiler et al. (2000) investigated this hypothesis in two studies. In the first study, 60 car business experts were asked to estimate the value of a 10-year-old car. Each was given all of the information which would typically yield the value, such as the year of the car, or the mileage, and they had the car in front of them for the whole experiment. Half of the participants were asked to list anchor- inconsistent arguments such as reasons why a high price would be inadequate before giving their estimate. It was hypothesized that listing anchor-inconsistent arguments would result in a lower financial estimate. Findings of this study showed that listing arguments which speak against an anchor value, results in decreased anchor effects. Results also showed that participants receiving a low anchor amount generated fewer anchor-inconsistent arguments, compared to participants receiving a high anchor amount. Typical anchoring effects were replicated in groups with no anchor- inconsistent arguments with significant differences between outcomes of high and low anchor groups (p <.001). These findings demonstrated that anchoring effects can be sizable, with estimates in the high and low anchor conditions deviating by 25% of the actual value of the car. Findings also show that these anchor effects can be mediated with anchor-inconsistent information (Mussweiler, Strack, & Pfeiffer, 2000).

16 The second study also investigated anchor-inconsistent information effects to determine if they would mitigate effects of anchor values that are randomly selected. For this study, 31 students were selected and randomly assigned to three argument conditions. Results showed that typical anchor effects were found, with high anchors resulting in higher estimates compared to low anchors (significant at p <.001). Absolute estimates were highest for high arguments, lowest for low arguments, and intermediate for no arguments listed. Thus, effects found in the first study, related to argument listing, were supported with the second study, which utilized randomly selected anchor values. The authors concluded that findings from this study demonstrated that the effects of anchoring when the opposite value is presented are additive (Mussweiler, Strack, & Pfeiffer, 2000). Anchoring in a Legal Context The robust effect of anchoring within a legal context has been repeatedly demonstrated in the literature. Studies have illustrated the susceptibility of judges to anchoring effects in criminal sentencing decisions (Ebbesen & Koneni, 1981; Englich &Mussweiler, 2001), to caps on noneconomic and punitive damages (Saks, Hollinger, Wissler, Evans, & Hart, 1997), as well as compensatory damages requests and subsequent awards (Chapman & Bornstein, 1996; Hinsz & Indahl, 1995; Malouff &Schutte, 1989; Raitz, Green, Goodman, and Loftus, 1990; Zuehle, 1982). Of particular importance to this study, the latter studies highlight the influence of anchors on juror compensatory damage assessments. In each study and regardless of whether or not liability was predetermined, the authors found that as the amount of

Full document contains 92 pages
Abstract: Research shows that a plaintiff's use of a dollar amount during closing argument can cause a jury to experience a distinct cognitive phenomenon called anchoring. The robust effect of anchoring has repeatedly demonstrated that the more plaintiffs request in damages, the higher the amount of compensatory damages awarded by subjects. Interestingly, researchers and practitioners alike have suggested, "there is no effective counter-anchor for defense counsel to offset the effect of the plaintiff's anchor." For the civil defense attorney, any monetary amount assigned to damages functions as a counter-anchor to the amount given by the plaintiff. The purpose of this investigation was to explore the effects of counteranchoring plaintiffs' compensatory damage requests during closing argument on juror decision-making, liability judgments and damage awards. For this study, the selective accessibility model was used as an overall theoretical reference. It was hypothesized that if the accessibility of anchorinconsistent knowledge (or an alternative award amount pro-offered by the defense) is increased, this knowledge (or alternative award amount) should be equally used to make the final estimate and reduce the effects of the easily accessible anchor offered by the plaintiff. Hence, counter-anchoring damages or providing anchor-inconsistent information may prove to substantially reduce the biasing effects of an uncontested damages anchor. After reading a case scenario and a plaintiff's closing argument, subjects were exposed to a defense closing argument that included either a zero, moderate, or high counter-anchor. The results of the present study indicate that both liability and award determinations were unaffected by the defense attorney's award recommendation, or counter-anchor. Although liability determinations were presumed to be unaffected and indeed were, it was predicted that award size would be influenced. Specifically, the linear increase in compensatory awards that was hypothesized across the study's three damage award conditions failed to emerge. Finally, it was hypothesized that the nonexistent damages counter-anchor (control) condition would produce the highest compensatory awards. No significant differences between the conditions were found. Explanations, study limitations, theoretical and practical implications, and suggestions for future research are discussed.