The Question: Three Effects, Which One Wins?

Social science results don’t always point in the same direction. Sometimes there are conflicting effects, and the question is, “Which effect is stronger?” The three effects compared in the new study (Campbell et al., 2014) are as follows:

The Anchoring Effect

Will the plaintiff who requests a million for pain and suffering do better than the plaintiff who simply says “you decide”? Yes. Jurors, along with the rest of us, are strongly influenced in numerical judgments when we’re given a number to start with. This is a very robust effect supported in a long line of studies (nicely summarized in the research article).

The Credibility Effect

Will a clearly overboard damages request hurt a plaintiff’s credibility to the point that it adds to the risk of loss on liability? Referred to as the “Straight Face Test,” it’s been up to this point, more a matter of conventional wisdom than social science research. But adding in the demonstrated tendency of jurors to fuse their thinking on damages and liability, it stands to reason that a loss of credibility in one area could effect the other area.

The Concession Effect

Do defendants risk increasing their chances of a loss when they offer their own number on damages, because doing that appears to concede or show weakness on liability? The limited research is a little murky on this point with some studies showing an effect and some not. In clear cases, the thinking is, it can be a bad idea to risk that soft concession. But in cases where it remains a reasonable possibility that jurors will get to the damages discussion, defendants shouldn’t let the plaintiff be the only party who is talking numbers.

The Study: The Anchor is Heaviest, but the Counter Still Counts

Where this study improves on previous work is comparing the effectiveness of various defense approaches in response. Using a stimulus that is more realistic than most prior studies (a 33-minute video is better than a paper description), and a large sample of 776 online participants, the team created attorney summary arguments that were identical aside from one manipulation on the plaintiff’s side (giving an anchor of either $250,000 or $5,000,000 for pain and suffering), and one manipulation on the defense side (ignoring the damages number and arguing liability only; attacking the plaintiff’s number but not countering; and countering with their own damages number while still contesting liability). Combining the two plaintiff versions with the three defense versions to create five scenarios, they looked at the resulting verdicts and damages to see what worked.

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