By Dr. Ken Broda-Bahm:
"Shoot for the moon," that motivational saying goes, "and even if you miss, you’ll land among the stars." Sounds nice, until the cynics (the kind who write demotivational posters) add, "...and die in the cold abyss of space." Both the feel-good and the sarcastic versions of that sentiment have a parallel in the psychology of plaintiff noneconomic damages requests. Based on the research showing our powerful tendency to "anchor" on a number, plaintiffs have a good reason to aim high when suggesting a number. They won't always get every dollar, the reasoning goes, but they will generally end up better off than if they hadn't shot for the moon. A robust body of research shows that. But there are a few important questions riding along with that: Is there a danger of losing credibility by asking for a figure that is so high that it's an inevitable miss? And what about defendants: should they ignore the number, attack the plaintiff's optimism, or counter with their own more grounded figure?
Different defense attorneys will give different answers based on their own experience and the uniqueness of each case. A strategy of avoiding a number to steer clear of an apparent concession of liability could be a valid strategy when the defense is overwhelmingly strong on liability...if those kinds of cases still go to trial. In the more likely scenario where it is a close call, most in the social science field will advise that it is much better to counter. That is what a new study (Campbell et al., 2014) also shows. The reactions of 776 research participants to a short mock trial video that varied both the plaintiff's pain and suffering request, as well as the defendant's response strategy shows several things: One, it confirms that plaintiffs do well to anchor high, even to the point of going overboard; and two, it shows that the defense is generally better off countering that number, rather than ignoring it or attacking its credibility. This post takes a look at the study, as well as its implications.