By Dr. Ken Broda-Bahm -
Aristotle, the original philosopher of communication, wrote in The Nicomachean Ethics about "the Golden Mean, " or the idea that virtue is often a happy medium between two vices (for example, courage is the virtue wedged between the vices of recklessness on the one hand, and cowardice on the other). More recently, Dennis Elias, an influential voice in the field of trial psychology, wrote in his blog, JuryVox, about current research showing that this thinking also applies to damage requests in litigation: When a requested amount is framed as a reasonable mid-point between two unreasonable extremes, it is more likely to be selected by jurors.
It stands to reason, and even common sense, that such a "middling" process applies to the quantitative act of assigning damages, but psychologically, the same process works in other acts of legal decision making as well. Our adversary system expects advocates to stick to a "my position is best" frame of mind, but decision makers are always implicitly or explicitly asking, "compared to what?" Juxtaposition to the other party is just a binary comparison of "this" or "that," inviting the jury, judge, or arbitrator to look for a point in between. So the trick is to create your own internal comparison, making your preferred outcome look like a point in between two extremes. That can mean making your damages request look more reasonable by contrasting it with what you're not asking for, but it can also mean making simple "negligence," for example, look like the right mid-point between "fraud," and "getting off Scot free."