PICTURE THIS. John Doe suffers a serious and permanent leg injury. At trial, his attorney produces testimony from Doe and his healthcare providers regarding the chronic pain and disability Doe is suffering, as well as his treatment. During closing argument, Doe's attorney requests the jury award $100,000. Defense counsel argues that $50,000 is the appropriate amount, based on the evidence produced by Doe. The judge instructs the jury that it must award damages on the basis of the evidence. The jury awards $90,333.
No, this case was not tried to a real jury in an actual courtroom but to a mock jury as part of a study to determine the effect of requesting specific dollar amounts upon jury deliberations. (1) The study found that Doe's damages award increased as his attorney requested larger sums, although the evidence as to damages was unchanged. For instance, in response to a request for $300,000, the award was a mean of $188,462; to a request of $500,000, the award was a mean of $282,868; and to a request for $700,000, the award was a mean of $421,538. As part of the same study, a separate group of jurors was given the same factual scenario, but the plaintiff's attorney did not request a specific amount of damages, and the jurors awarded a mean of $167,812.
This study, and others like it, is more than an interesting academic exercise. Real life parallels are found in courtrooms across the country.
Kusisto v. McLean is one such example. (2) Kusisto involved an 18-year-old boy injured in a motorcycle accident. The boy sued, joined by his father, who brought a companion suit for his son's injuries. The boy suffered severe injuries, including the amputation of his leg at mid-thigh. Just before trial, the defendants conceded liability. The case went to the jury on the issue of damages. In closing argument, the attorneys for the boy and his father argued for a lump sum to compensate for damages, including pain and suffering. The father's attorney piggy-backed off of the closing argument of the son's attorney, telling the jury:
Mr. Steenbergh, as a competent and respected member of the Bar of this community, as this boy's lawyer, has asked for $750,000 for this boy and on the evidence which has been presented here I agree with him. It isn't any binding figure on you people. It is within your province to do what you feel is right. (3)
Swayed by the argument, the jury awarded $510,000 to the son and $32,500 to the father. Defense counsel made a timely objection to the use of argument for a specific sum in closing, and also appealed the court's denial of a motion for new trial.
On appeal, the New York Appellate Division held it was error for the boy's attorney to argue a lump sum and for the father's attorney to make himself an unsworn witness and render opinion testimony concerning a matter not in evidence. Despite this holding, however, the court did not reverse the holding because the trial judge gave appropriate limiting instructions. Instead, it modified the judgment and awarded a lower amount of damages.
Kusisto, as well as the mock jury study, illustrates the mischief caused by arguments by plaintiff's counsel for specific monetary sums for non-economic damages during closing. No objective test can assess the severity of a plaintiff's non-economic losses. No satisfactory measure can translate this type of harm into dollars. Jurors are given little guidance in how to determine a reasonable award for non-economic damages. Plaintiff' s counsel, without a factual basis for doing so, will fill this analytic void with the suggestion of an amount. Once such an argument has been made to the jury, defense counsel has no effective way to "un-ring the bell."
Arguments seeking specific monetary amounts for non-economic damages, by their very nature, are based solely on the opinions of plaintiffs' counsel. This is so because while there may be evidence of the impact of the experience on the plaintiff, there can be no evidence of the dollar value of that experience. This is in striking contrast to arguments for monetary amounts where there is concrete evidence before the jury concerning lost earnings, medical expenses, or estimates of future lost earning capacity. The end result is that requests for specific monetary sums for non-economic damages result in inflated jury verdicts propelled only by the opinion of plaintiff's counsel.
This problem is exacerbated by the frequent unwillingness of courts to limit arguments for a specific monetary amount for non-economic damages before they are made. Because of their impact on juries, defense counsel must attempt to preclude these arguments through the use of motions in limine.
THE "ANCHORING EFFECT"
Research shows that a plaintiff's use of a dollar amount during closing argument can cause a jury to experience a distinct cognitive phenomenon, labeled by researchers as "anchoring." Anchoring is defined as "the bias in which individuals' numerical judgments are inordinately influenced by an arbitrary and irrelevant number." (4) Anchoring describes the correlation between the suggestion of specific numbers to a subject, and the effect of this suggestion on the subject.
Research reveals one truth about the anchoring effect--it results in reliable positive correlation between a number suggested to and chosen by a subject. The effect is not predicated on the plausibility or reasonableness of the numerical anchor, as has been revealed through a variety of studies. In order to observe the effect of anchoring, researchers will ask people to make a numerical judgment after providing them with an initial estimate. (5) Final judgments tend to be positively correlated with the random starting point. Anchoring not only results in an increase in the average estimate of the anchored subjects, as compared to the control group, but the studies imply that the "magnitude of the effect grows with the discrepancy." (6)
Jurors are not immune from the "anchoring" effect. One study found that nearly half of mock jurors selected a damage award that exactly matched the amount requested. (7) Another study required subjects to read a short description of a personal injury suit brought by a woman against a health maintenance organization. (8) The plaintiff claimed that her HMO-prescribed birth control pills resulted in ovarian cancer, which precluded her from having children and would ultimately result in her death. The subjects were separated into four distinct groups, with each receiving a different numerical anchor prior to determining damages for pain and suffering. The four anchors were $100, $20,000, $5 million, and $1 billion. The study revealed a linear relationship between the anchors and the subsequent awards. A larger request in the ad damnum clause yielded a greater award.
Another study analyzed the effect on mock jurors of requests for different awards. (9) One scenario that was analyzed involved a plaintiff with permanent temporomandibular joint and shoulder injuries, as well as permanent wage loss. The "jurors" were told that the defendant had admitted liability and that the sole remaining issue was the amount of damages to be awarded. They were given differing summations in which the plaintiff's attorney asked for specific monetary amounts of $200,000, $400,000, $600,000 or $800,000. In each instance, defense counsel suggested $150,000.
The results were enlightening. A request of $200,000 brought a mean of $197,875; a request $400,000 brought a mean of $289,375; a request of $600,000 brought a mean of $434,400, and a request of $800,000 brought a mean of $479,447. As part of this same study, a separate group of jurors was given the same factual scenario, but the plaintiff's attorney did not request a specific amount. The jurors awarded a mean of $276,687.
The primary finding of this study was that "when more money was requested for damages by the plaintiff's attorney, the jurors awarded more." This study powerfully illustrates how a numerical anchor used during closing argument can increase the amount of damages that may be awarded by a jury.
Another researcher concluded that his examination of anchoring on mock jurors indicated the "powerful impact of the introduction of anchors on mock jurors' damage awards." (10) This study utilized three different settings: no anchor, a $2 million anchor and a $20 million anchor. The subjects were shown a videotape of a personal injury trial involving the death of two children in a car accident. The anchors were provided to certain subjects in the context of a closing argument and to others as upward limitations on damages as concluded by the judge. In each setting, the damage awards moved toward the anchor that was given to the mock jurors.
This research shows that defense counsel should be concerned with the possibility that jurors will become anchored to the monetary sums suggested by plaintiffs' counsel in arguing for an award of non economic damages, no matter how irrelevant or outrageous the suggested sum may seem. While the numerical anchoring effect applies broadly to any category of damages, the impact is greatest on that category of damages least susceptible to quantification--pain and suffering; emotional distress; fear; loss of care, comfort and society; or loss of consortium.
The time has come for reform on this issue and for defense counsel to use the latest cognitive science research to bolster an argument against the suggestion of monetary sums in compensation for non-economic damages in closing argument.
No objective test is available to assess the severity of a plaintiff's non-economic damages, nor can any method satisfactorily translate this harm into an appropriate monetary award. The American tort system requires a jury to engage in the artificial process of translating subjective human experiences into monetary awards that seek to place an objective measure on those experiences. Because of these difficulties, plaintiffs' attorneys' frequently resort to certain types of arguments to demonstrate and prove their clients' right to damages. In fact, they are attempting to increase the amount of non-economic damages--not only for their client but also for their own contingent fee interests--by using either lump sum or per diem arguments.
A lump sum argument is when an attorney suggests a specific dollar figure or award range that would compensate the plaintiff for non-economic damages such as pain and suffering. A per diem argument is one in which the plaintiff's counsel reduces pain, suffering or fear into a unit of time--minutes, hours, days--and argues for a monetary value for each unit.
Defendants are placed at a severe disadvantage when either approach is allowed because there is no evidentiary basis to guide the jury in converting pain and suffering into monetary terms. Juries will elevate the amount of the ultimate award based on the anchor presented to them, not the evidence before them. There is no effective counter-anchor for defense counsel to offset the effect of the plaintiff's anchor. Defense counsel is restricted by the sum of zero, yet it might well be offensive to a jury to argue that a plaintiff's pain and suffering is worth zero. This leaves the defense counsel with two equally unattractive choices--either don't respond or counter with a specific dollar value.
Either is a bad choice. By providing the jury with no figure, defense counsel forfeits the opportunity to provide guidance to counter the plaintiff's number. By providing the jury with a dollar amount, defense counsel creates a floor for the jury, under which they are unlikely to venture. In addition, the defense counsel risks the jury interpreting the defense dollar figure as an admission of liability, should both the issue of liability and damages be going to the jury.
Even more problematic is that in a jury trial of a personal injury or wrongful death action, most courts will allow a plaintiff's attorney to state the amount of non-monetary damages claimed or expected by his client. In fact, several states have statutes specifically allowing the claimant to tell the trier of fact the amount of damages sought. (11)
A. Lump Sum Arguments
Many jurisdictions allow the use of lump sums, including ad damnum amounts, in closing argument. One reason given by courts is that a jury must know what amount the plaintiff is suing for, if the jury is going to be instructed that it cannot award in excess of that amount. (12) In addition, some courts believe that such argument will assist the jury in determining the amount of damages to award. (13) While this rationale is sound in cases where damages are susceptible of determination through direct evidence--for example in a breach of contract case where an agreed sum sets the value of goods or services--the rational is much less compelling in cases where damages sought cannot be so quantified, as in a personal injury case where the principal element of damages is pain and suffering.
California restricts the right of the trial judge to limit the use of lump sum or per diem arguments in closing argument. In Beagle v. Vasold, (14) the California Supreme Court reviewed a case in which a plaintiff's counsel was forbidden by the trial judge from mentioning to the jury a lump sum of money or any per diem calculation, "such is not evidence." On appeal, the court held that the use of a numerical sum or per diem calculation is reasonable and that the failure to allow that argument was reversible error. The court stated that it "seems patently clear that an attorney does not interfere with a jury's decision-making powers to any greater extent when he suggests that damages be measured on a segmented basis than when he exhorts the jury to find the defendant negligent." While it may be true that the suggestion that damages be measured in segments will not unduly influence a jury, the social science research on the anchoring effect is irrefutable that the suggestion of a dollar value for the segments to be measured will cause undue influence.
In some jurisdictions, trial courts retain discretion over the use of lump sum arguments. (15) Trial judges may either prohibit counsel from mentioning specific figures or impose reasonable limitations on those arguments. If they are allowed, some appellate courts have stated that trial courts should caution the jury that dollar figures mentioned by counsel do not constitute evidence but merely represent argument that the jury may disregard in its deliberations. (16)
Massachusetts gives trial courts discretion to allow or prohibit the mention of a lump sum amount or the ad damnum. For example, in Luz v. Stop & Shop of Peabody, (17) the Massachusetts Supreme Judicial Court reviewed a case in which the plaintiff's counsel made reference to the ad damnum clause in the closing argument and asked the jury to award $200,000. The trial court found that this was an improper argument, and in its instructions to the jury, the trial judge emphasized that what counsel says is not evidence and that the case must be decided on the evidence. The trial court specifically instructed the jury regarding counsel's use of the ad damnum clause and stated that the clause has no probative value because damages must be assessed without any consideration of that amount. The appellate court held that the charge to the jury was sufficiently strong to counteract the adverse effect of the improper argument.
A growing number of courts do not allow the use of lump sum arguments. (18) In addition, even courts that usually allow lump sum arguments are beginning to find prejudice when the jury verdict is the precise lump sum requested by the plaintiff's counsel. (19)
The Third Circuit disapproved of a plaintiff's veiled attempt at a lump sum argument in Waldorf v. Shuta. (20) During closing arguments for pain and suffering damages, the plaintiff's counsel stated that if the plaintiff had become an attorney, his lifetime earnings would have been approximately $3.8 million. He then argued that if the jury awarded the requested amount, it would amount to "peanuts for the price that should be paid for what this man went through." The court determined that this argument was a request by plaintiff's counsel for a specific amount of money for pain and suffering and that it was reversible error to allow the argument.
Similarly, the Second Circuit disfavors the practice of requesting a specific dollar amount in damages because, as it stated in Consorti v. Armstrong World Industries Inc., it risks unfairly swaying the jury by "anchoring the jurors' expectations of a fair award at a place set by counsel, rather than by the evidence." (21) However, this court has not ruled that it is error to permit such recommendations. It has taken a more flexible approach in which it is left to the discretion of the trial judge. (22) Despite this seemingly flexible approach, the Consorti court "encouraged" trial judges to bar such recommendations.
New Jersey courts do not allow the use of mathematical calculations or lump sum monetary amounts in closing arguments. (23) A New Jersey statute prohibits the use or suggestion by counsel of specific monetary amounts either on a lump sum or unit of time basis.
Pennsylvania courts also take the view that any reference by plaintiff's counsel to the amount of damages claimed or expected by a client in a jury trial of a personal injury action is improper. In one such case, the plaintiff's counsel stated in closing argument that the plaintiff asked "for $20,000 in this suit." On appeal, the Pennsylvania Supreme Court disapproved of the argument and found that damages ought to be ascertained by the jury from the evidence, not from an estimate of counsel not based on the evidence. (24)
Several courts have made a distinction between allowing a lump sum figure to be used and disallowing reference to the ad damnum clause of the complaint. For example, in Affett v. Milwaukee & Suburban Transportation Corp., (25) the Wisconsin Supreme Court stated that counsel for both the plaintiff and defendant may suggest in summation a lump sum dollar amount for pain and suffering, but it is improper for plaintiff' s counsel to refer to the amount in the ad damnum clause because it has no probative value, is not part of the evidence, and is the equivalent of an asking price in the complaint before any evidence is in the record.
Likewise, the First Circuit has held that, under federal law, a plaintiff's counsel cannot disclose the ad damnum clause to the jury. The court declared that "the ad damnum is, blatantly, an opinion of counsel" or a "mere psychological expression of hope." (26)
Although use of lump sum amounts in a plaintiff's closing argument regarding non-economic damages is allowed in many jurisdictions, the majority of courts agree that supervision of closing arguments traditionally are left to the trial court's discretion. (27) Therefore, there is always room to argue regarding the propriety of the use of a lump sum amount.
B. Per Diem Arguments
As stated above, a per diem argument is a calculation by the plaintiff's counsel of non-monetary damages by employing a unit of time related to pain and suffering and assigning that time a monetary value. Using a per diem calculation, the jury arrives at a total value for non-economic damages. Sometimes the procedure is reversed: the plaintiff's counsel states a total value for pain and suffering and then shows that the average monetary value for the time unit is relatively small. These calculations typically are used in personal injury cases, but in wrongful death cases, they can be used as a means of calculating the loss of care, comfort and society.
In general, courts have ruled that per diem or other mathematical formula arguments are proper, either generally, (28) or when accompanied by a cautionary instruction. (29) Some courts believe that per diem arguments do not constitute the introduction of improper evidence, but are simply proper inferences from the evidence introduced at trial concerning the nature of the plaintiff's pain and suffering. (30) Courts also have categorized per diem arguments as illustrative and suggestive, not evidence. These courts concluded that the claimed danger of the argument being mistaken for evidence is exaggerated and can be dispelled by a court's instruction. (31)
Some courts that allow per diem arguments find unconvincing the objection that argument is unsupported by the evidence; the jury must, by that or some other reasoning process, estimate and allow an amount appropriately tailored to the particular evidence. The very absence of a yardstick makes questionable the contention that counsel's suggestions of amounts will mislead the jury. These courts appear to reason that although dollars and pain are not equivalent, the jury is forced to equate the two, and therefore per diem arguments give the jury needed assistance in accomplishing this difficult task. (32) In upholding the right to make a per diem argument, some courts consider logically inconsistent to permit counsel to inform the jury of a lump sum amount, while shielding the jury from the suggestion that the total amount might be fragmented to represent periods of time. (33)
Courts that approve such arguments also find the use of a per diem argument no more an invasion of the province of the jury than a plea to the jury to find the defendant negligent. (34) Generally, per diem arguments seem to have been allowed based on courts' belief in the common sense of jurors. (35)
Some courts will only allow a per-diem argument if it is accompanied by a cautionary jury instruction. The court should make clear to the jury that the unit-of-time device is simply a method of presenting contentions. (36) Other courts prefer to handle the issue through judicial review of the verdict. After a jury returned a verdict for the exact amount requested by plaintiff in closing argument, one court stated that while this supported the argument that juries tend to grasp at any definite sum available for consideration, no real support existed for the theory that the per diem argument resulted in excessive verdicts. The court then stated its preference to control the excessive verdicts by retrospective judicial review. (37)
In Grossnickle v. Village of Germantown, (38) the Ohio Supreme Court noted that the most serious contentions advanced against permitting a per diem argument include that (1) it displaces the jury's common knowledge and experience of pain and suffering; (2) it ignores the fact that pain generally is intermittent; (3) it makes no allowance for a discount for the present use of the total award; and (4) it stretches speculation to absurdity. The court discounted each of these objections in order: (1) in reality, average jurors are unacquainted with the type of pain and suffering they have to translate into a monetary value; (2) pain may be intermittent, but suffering the loss of a member or of normal activities is continual; (3) an award in gross is never discounted by the court, and if it is by the jury, the factor used is never disclosed; and (4) the absurdity of any hypothesis is fair game for the opposing party.
Some courts view the issue of per-diem arguments as within the province of the trial court's discretion. (39) Others have specifically declined to take a general position as to the propriety of using a per diem argument and have instead restricted their holdings to the facts of the cases under consideration. (40)
The outlook is not totally bleak for defense counsel. Courts have struck down per diem arguments for a variety of reasons.
First and foremost, per diem calculations in a closing argument attempt to lend a false air of certainty to an area where none exists, given that non-monetary damages, by their very nature, are not subject to mathematical computation and are not capable of exact determination. (41) These arguments should be excluded because they have no foundation in evidence and import into a trial elements of sheer speculation in the guise of mathematical precision. (42) Mathematical rules create an illusion of certainty in the jury's mind that does not exist in reality.
Second, without an evidentiary basis for converting pain and suffering into monetary terms, courts have held that it is improper for counsel to suggest a total amount for pain and suffering and even more improper to suggest per diem calculations. (43)
Third, per diem arguments invade the province of the jury by allowing counsel to give testimony and express opinions and conclusions on matters not disclosed by the evidence. (44) If a per diem argument is allowed, juries can be misled into making excessive awards. Some courts have noted that simple multiplication produces astronomical answers if a per-diem approach to pain and suffering is allowed. (45)
Fourth, defense counsel is prejudiced by being placed in a position of attempting to rebut an argument having no basis in evidence, with the result that if they do not answer in kind, the defense suffers its effect on the jury, or if they do answer in kind, they imply approval of the per diem scheme. (46)
Finally, jury admonitions are ineffective to erase the prejudicial effects. Some courts have concluded that although a per diem argument or the use of other mathematical formula for use in determining damages for pain and suffering is improper, the error was not prejudicial where the trial court gave cautionary instructions. (47) If the trial court fails to give a cautionary instruction, the use by counsel of a per diem argument is likely to constitute prejudicial error. (48)
HOW TO PREVENT LUMP SUM AND PER DIEM ARGUMENTS
Defense counsel must attempt to exclude plaintiffs' attorneys' suggestions of specific monetary sums in arguing non-economic damages in closing. The best vehicle to exclude such arguments is a motion in limine to block the argument before it is made. At the very least, an objection should be put on the record if a plaintiff's counsel resorts to lump sum or per diem arguments. In jurisdictions that allow lump sum or per diem arguments, a motion in limine is a fruitful way to highlight the body of social science research documenting the anchoring effect and the prejudice that inevitably results to the defense. The motion preserves the issue for post-trial motions for a new trial, for a remittitur, or for an appeal.
A. Legal Analysis
In constructing the legal analysis for a motion in limine to exclude lump sum or per diem arguments, special attention first should be placed on the number of jurisdictions disfavoring the practice and the rational behind their decisions. For instance, in Consorti, the Second Circuit held against the practice of requesting a specific dollar amount in non-economic damages because it risks unfairly swaying the jury by "anchoring the jurors' expectations of a fair award at a place set by counsel, rather than by the evidence.' (49)
Second, a motion in limine should remind the court of its inherent ability to control closing arguments. The motion should begin by stating the long-standing rule that awards for non-monetary damages such as loss of society, care, protection, and pain and suffering are left to the sound discretion of the jury. As noted by one California appellate court, almost 100 years ago:
[T]here is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury, governed by a sense of justice. It is, indeed, one of the principal causes in which the trial by jury has originated. The law that confers on them this power and exacts of them the performance of this solemn trust, favors the presumption that they are actuated by pure motives. It, therefore, makes every allowance for different dispositions, capacities, views and even frailties in the examination of heterogeneous matters of fact where no criterion can be supplied. (50)
Third, the motion in limine should stress that any reference to a specific monetary sum is an argument unsupported by the evidence and a masked attempt to place a value on non-monetary damages that, by definition, cannot be so evaluated. (51) References to a dollar amount or range could have the improper effect of irrationally inflating the damages award. Rather than relying on its own estimates and reasoning, a jury may give undue weight to the figures advanced by plaintiff's counsel. (52) This is especially true in light of the anchoring effect.
It is imperative that a motion in limine refer to the cognitive science showing that jurors are susceptible to the anchoring effect. Remember that many of the courts that allow lump sum or per diem arguments do so in the belief that these arguments have no effect upon jurors. The motion should test this unfounded belief by educating the court as to the jury studies showing the power of the anchoring effect and its prejudicial effect on defendants. For example, a study showing that half of the mock jurors selected a damage award exactly matching the amount requested powerfully demonstrates that jurors are unduly persuaded by such arguments. (53)
B. Scope of Motion
The motion in limine should seek to exclude both lump sum and per diem arguments in sections targeted to each. The following are suggested points to be used for each section.
1. Lump Sum Arguments
* Counsel for the plaintiff is improperly testifying by arguing for a specific monetary sum during closing argument. It is improper for counsel to state what sum is proper in his personal opinion. (54) An attorney is not allowed to act as an unsworn witness and render opinion testimony.
* Suggesting a lump sum amount does not assist the jury; it manipulates the jury.
* Counsel for the plaintiff interferes with a jury's decision-making process by suggesting a lump sum value for non-economic damages. Such an argument has an anchoring effect on the jury, as has been established through social science research. This is wholly different from an attorney's request that the jury find the defendant negligent. A request to find liability is based on evidence presented to the jury, whereas a request to award a specific lump sum in compensation for non-economic damages has no basis in evidence. A distinction should be drawn between the right of plaintiff's counsel to argue the impact of the pain, suffering, loss of care, comfort and society, on the one hand, and the monetary value necessary to compensate for that impact, on the other hand.
* In cases affecting the entire working and traveling public, plaintiff's counsel may attempt to state a specific monetary sum during closing argument while appealing to the jurors' passions and prejudices, and arguing for "the good of the community." (55) Such an argument is objectionable and should not be allowed because the jury is not called on to decide the issue for the entire community, but only the plaintiff's suit.
2. Per Diem Arguments
* Per diem arguments lend a false air of certainty to an area where none exists. Pain and suffering and other non-economic damages, by their very nature, are subjective experiences not capable of accurate quantification. It is imperative to point out in the motion in limine that per diem arguments are not proper inferences from the evidence. Instead, plaintiffs' attorneys are merely concocting random numbers that they want the jury to award.
* Simple multiplication may produce an astronomical product if a per diem approach to pain and suffering is allowed. (56)
* Defendants' counsel is prejudiced by being placed in a position of attempting to rebut an argument having no basis in evidence. By not answering, they suffer in the jury's eyes. By answering, they imply approval of the per diem. (57)
* Per diem arguments falsely assume that pain is continual and uniform, when in fact it can be intermittent. Nothing in the per diem calculation allows for gradual decreases or increases of pain. Furthermore, because loss of care, comfort, and society is being estimated into the future, there is no allowance for a discount for the present use of the total award.
* Instructions to disregard the use of a per diem argument are insufficient to dispel the influence on jurors. This approach ignores the element of human nature that would much prefer a clean, formulaic method to deal with these speculative claims. In addition, research shows that a jury grasps the "anchor" presented to it in a suggested monetary sum for a unit of time. A simple instruction to disregard this "anchor' will be fruitless and is insufficient to undo the harm caused by the suggestion.
* Plaintiffs' attorneys interfere with a jury's decision-making powers by using per diem arguments as to non-economic damages. An anchoring effect has been established through social science research. This situation is wholly different from an attorney's request that the jury find the defendant negligent, which must be based on the evidence presented to the jury. A per diem argument has no basis in evidence.
The suggestion of specific monetary sums as compensation for non-economic damages in closing arguments can drastically change a jury's award. Research studies show that jurors are not immune from the effect of "anchoring." The jury will increase the amount it awards in non-economic damages based on the "anchor" used in closing argument.
The fact that many courts currently allow lump sum and per diem arguments should not dissuade defense counsel from attempting to foster a change. Courts that permit these arguments do not appear to have been made aware of or appreciate the impact of the anchoring effect and the prejudice that results to defendants. The avenue to change is through systematic efforts by the defense bar to educate courts at all levels concerning the anchoring effect and the harm that it causes to the jury's deliberative process. This can be done through a motion in limine that seeks to preclude these types of arguments.
In time, courts may realize what the social science research has amply demonstrated--the irrational, but persuasive, influence lump sum and per diem arguments have on jurors--and determine that these arguments have no place in closing argument in non-economic damages cases.
(1.) John Malouff & Nicola A. Schutte, Shaping Juror Attitudes: Effects of Requesting Different Damage Amounts in Personal Injury Trials, 129 I. SOC. PSYCHOL. 491,493 (1989).
(2.) 382 N.Y.S.2d 146 (App. Div. 3d Dep't 1976).
(3.) Id. at 147.
(4.) Gretchen B. Chapman & Brian H. Bornstein, The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519 (1996).
(6.) See, e.g., S. Plous, Thinking the Unthinkable: The Effects of Anchoring on Likelihood Estimages of Nuclear War, 19 J. APPLIED SOC. PSYCHOL. 67, 68 (1989); Chapman & Bornstein, supra note 4, at 519-20.
(7.) Raitz, A., Greene, E., Goodman, J. and Loftus, E.F., Determining Damages: The Influence of Expert Testimony on Jurors' Decision Making, 14 LAW AND HUMAN BEHAVIOR 385-395 (1990).
(8.) Chapman & Bomstein, supra note 4, at 523.
(9.) Malouff & Schutte, supra note 1, at 491,493.
(10.) Verlin B. Hinsz & Kristin E. Indahl, Assimilation to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991, 1000, 1009 (1995).
(11.) See, e.g., CONN. GEN. STAT. [section] 52-216(b) (allowing mathematical formulae and lump sums); HAW. REV. STAT. [section] 635-52 (allowing mathematical formulas and lump sums); N.J. REV. STAT. [section] 1:71(b) (allowing "time unit summation").
(12.) See Phillips v. Fulghum, 125 S.E.2d 835, 838 (Va. 1962).
(13.) Shockman v. Union Transfer Co., 19 N.W.2d 812, 820-21 (Minn. 1945).
(14.) 417 P.2d 673,675 (Cal. 1966).
(15.) Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912-13 (2d Cir. 1997) (favoring more flexible approach); Murphy v. Nat'l R.R. Passenger Corp., 547 F.2d 816, 818 (4th Cir. 1977) (if trial court in its discretion concludes the closing argument would not have unduly prejudicial effect, it may permit counsel to suggest a monetary figure for award regarding damages for pain and suffering).
(16.) Murphy, 547 F.2d at 820; Williams v. Long Island R.R., 343 N.Y.S.2d 700, 704 (App. Div. 2d Dep't 1973); Ouelette v. Champagne, 296 F.2d 636, 638-39 (1st Cir. 1961); Phila. & R. Ry. Co. v. Skerman, 247 F. 269, 271 (E.D.N.Y. 1917); Smith & Phila. Transp. Co., 173 F.2d 721, 726 (3d Cir. 1949); Bowers v. Pa. R.R. Co., 281 F.2d 953, 953 (3d Cir. 1960); Jimmy's Cab Inc. v. Isennock, 169 A.2d 425,430 (Md. 1961); Luz v. Stop & Shop Inc. of Peabody, 202 N.E.2d 771, 776-77 (Mass. 1964); Symons v. Great N. Ry. Co., 293 N.W. 303, 308 (Minn. 1940); Domijan v. Harp, 340 S.W.2d 728, 734 (Mo. 1954); Caruolo v. John Crane Inc., 226 F.3d 46, 57 (2d Cir. 2000).
See also Cain v. State Farm Mut. Auto. Ins. Co., 121 Cal. Rptr. 200, 211 (Cai.App. 1975); Neumann v. Bishop, 130 Cal.Rptr. 786, 809-10 (Cai. App. 1976); Vajda v. Tulsa, 572 A.2d 998, 1004-06 (Conn. 1990); Rush v. Sears, Roebuck & Co., 461 N.Y.S.2d 559, 562 (App. Div. 3d Dep't 1983).
(17.) 202 N.E.2d 771, 776-77; Goldstein v. Gontarz, 309 N.E.2d 196, 207 (Mass. 1974).
(18.) See Waldorf v. Shuta, 896 F.2d 723, 744 (3d Cir. 1990); Consorti v. Armstrong World Indus. Inc., 72 F.3d 1003, 1016 (2d Cir. 1995), vacated on other grounds, 518 U.S. 1031 (1996); Mileski v. Long Island R.R., 499 F.2d 1169, 1172 (2d Cir. 1974; Botta v. Brunner, 138 A.2d 713, 721-23 (N.J. 1958); Johnson v. Stoveken, 145 A.2d 801, 803-04 (N.J. 1958); Purpura v. Pub. Serv. Elec. & Gas Co., 147 A.2d 591,594-95 (N.J. 1959); Quinn v. Phila. Rapid Transit Co., 73 A. 319, 320 (Pa. 1909).
(19.) Cortez, 167 Cal. Rptr. at 915.
(20.) 896 F.2d 723,744 (3d Cir. 1990).
(21.) 72 F.3d 1003, 1016 (2d Cir. 1995). See also Mileski, 499 F.2d at 1172 ("A jury with little or no experience in such matters, rather than rely upon its own estimates and reasoning, may give undue weight to the figures advanced by plaintiff's counsel."); Thomas v. Medco, 1998 WL 542321, at * 12 (S.D.N.Y. 1998).
(22.) Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997).
(23.) See Botta v. Brunner, 138 A.2d 713, 721-23 (N.J. 1958); Johnson v. Stoveken, 145 A.2d 801, 803-04 (N.J. 1958); Purpura v. Pub. Serv. Elec. & Gas Co., 147 A.2d 591,594-95 (N.J. 1959).
(24.) Quinn v. Phila. Rapid Transit Co., 73 A. 319, 320 (Pa. 1909).
(25.) 106 N.W.2d 274, 280 (Wis. 1960).
(26.) Davis v. Browning-Ferris Indus. Inc., 898 F.2d 836, 837 (1st Cir. 1990).
(27.) Ortiz v. Bank of Am. Nat'l Trust & Say. Ass'n, 852 F.2d 383, 389 (9th Cir. 1987).
(28.) Beagle v. Vasold, 417 P.2d 673, 682 (Cal. 1966); Loth v. Truck-A-Way Corp., 70 Cal.Rptr. 2d 571, 576 n.7 (Cai. App. 1998); Newbury v. Vogel, 379 P.2d 811, 813-14 (Colo. 1963); Rodrigue v. Hausman, 519 P.2d 1216, 1217 (Colo. 1974); Hardwick v. Price, 152 S.E.2d 905, 908 (Ga. App. 1966); Tucker v. Union Oil Co. of Cal., 603 P.2d 156, 161 (Idaho 1979); Evansville City Coach Lines Inc. v. Atherton, 179 N.E.2d 293, 297 (Ind. 1962); Kampo Transit Inc. v. Powers, 211 N.E.2d 781,79394 (Ind. 1965); Corkery v. Greenberg, 114 N.W.2d 327, 332 (Iowa 1962);
Cardamon v. Iowa Lutheran Hosp., 128 N.W.2d 226, 230 (Iowa 1964); Louisville & N. R. Co. v. Mattingly, 339 S.W.2d 155, 161 (Ky. 1960); Paducah Area Pub. Library v. Terry, 655 S.W.2d 19, 24 (Ky. 1983); Little v. Hughes, 136 So.2d 448, 452 (La. 1961); Yates v. Wenk, 109 N.W.2d 828, 830-31 (Mich. 1961); Pippen v. Denison, Div. of Abex Corp., 239 N.W.2d 704, 709 (Mich. App. 1976); Cafferty v. Monson, 360 N.W.2d 414, 417 (Minn. 1985); 4-County Elec. Power Ass'n v. Clardy, 73 So.2d 144, 152 (Miss. 1954); Higgins v. Hermes, 552 P.2d 1227, 1230 (N.M. 1976);
Feldman v. Town of Bethel, 484 N.Y.S.2d 147, 150 (App. Div. 3d Dep't 1984); Grossnickle v. Village of Germantown, 209 N.E.2d 442, 447 (Ohio 1965); Hall v. Burkert, 193 N.E.2d 167, 169 (Ohio 1962); DeMaris v. Whittier, 569 P.2d 605, 607 (Or. 1977); Howle v. PYA/Monarch Inc., 344 S.E.2d 157, 164-65 (S.C. 1986); J.D. Wright & Son Truck Line v. Chandler, 231 S.W.2d 786, 789 (Tex. 1950); Sunset Brick & Tile Inc. v. Miles, 430 S.W.2d 388, 389-90 (Tex. 1968); Braddock v. Seaboard Airline R.R. Co., 80 So.2d 662, 668 (Fla. 1955); Ratner v. Arrington, 111 So.2d 82, 89 (Fla. 1959);
Baron Tube Co. v. Transp. Ins. Co., 365 F.2d 858, 865 (5th Cir. 1966); Vanlandingham v. Gartman, 367 S.W.2d 111, 114 (Ark. 1963); Evening Star Newspaper Co. v. Gray, 179 A.2d 377, 381-83 (D.C. 1962); Wyant v. Dunn, 368 P.2d 917, 920 (Mont. 1962); Olsen v. Preferred Risk Mut. Ins. Co., 354 P.2d 575, 576 (Utah 1960); Jones v. Hogan, 351 P.2d 153, 157-58 (Wash. 1960); Imperial Oil Ltd. v. Drlik, 234 F.2d 4, 11 (6th Cir. 1956).
(29.) Waldron v. Hardwick, 406 F.2d 86, 89 (7th Cir. 1969); Atl. Coast Line R.R. Co. v. Kines, 160 So.2d 869, 876 (Ala. 1963); Evening Star Newspaper Co., 179 A.2d at 382-83; Barretto v. Akau, 463 P.2d 917, 923-24 (Haw. 1969); E. Shore Pub. Serv. Co. v. Corbett, 177 A.2d 701,711 (Md. 1962); Market Tavern Inc. v. Bowen, 610 A.2d 295, 313 (Md. 1992); Weeks v. Holsclaw, 295 S.E.2d 596, 601 (N.C. 1982); Worsley v. Corcelli, 377 A.2d 215, 219 (R.I. 1977).
(30.) Beagle, 417 P.2d 673; Higgins, 552 P.2d at 1230.
(31.) Ratner, 111 So.2d at 89; Affett, 106 N.W.2d at 278-79.
(33.) Beagle, 417 P.2d 673; DeMaris, 569 P.2d at 607.
(34.) Beagle, 417 P.2d 673.
(35.) Barretto, 463 P.2d at 923.
(36.) Baron Tube, 365 F.2d at 865; Vanskike v. ACF Indus. Inc., 665 F.2d 188, 211 (8th Cir. 1981); E. Shore Pub. Serv. Co., 177 A.2d at 711; Christy v. Saliterman, 179 N.W.2d 288,304 (Minn. 1970).
(37.) Higgins v. Hermes, 552 P.2d 1227, 1230 (N.M. 1976).
(38.) 209 N.E.2d 442, 446 (Ohio 1965).
(39.) Rush v. Cargo Ships & Tankers Inc., 360 F.2d 766 (2d Cir. 1966); Mileski, 499 F.2d at 1174; Murphy, 547 F.2d at 818; Baron Tube, 365 F.2d at 864-65; Beason v. Bock & Blevins Inc., 494 F.2d 516, 516 (5th Cir. 1974); McDonald v. United Airlines, 365 F.2d 593, 595 (10th Cir. 1966); Vanlandingham, 367 S.W.2d at 113 (by implication); Heddendorf v. Joyce, 178 So.2d 126, 131 (Fla. 1965); Ratner, 111 So.2d at 89; Wyant, 368 P.2d at 920; Vogel v. Fetter Livestock Co., 394 P.2d 766, 772 (Mont. 1964); Johnson v. Brown, 345 P.2d 754, 759 (Ney. 1959); Olsen, 354 P.2d at 576; Tjas v. Proctor, 591 P.2d 438, 440 (Utah 1979) (by implication).
(40.) Bowers, 182 F. Supp. 756; Imperial Oil, 234 F.2d at 10; Pa. R. Co. v. McKinley, 288 F.2d 262, 267 (6th Cir. 1961); O'Rielly Motor Co. v. Rich, 411 P.2d 194, 200 (Ariz. 1966; Jones, 351 P.2d at 158 (Wash. 1960).
(41.) James O. Pearson Jr., Annotation, Per Diem or Similar Mathematical Basis for Fixing Damages for Pain and Suffering, 3 A.L.R. 940 (1981).
(42.) Botta, 138 A.2d at 723; Henne v. Balick, 146 A.2d 394, 398 (Del. 1958); Harper v. Bolton, 124 S.E.2d 54, 59 (S.C. 1962); Affett, 106 N.W.2d at 280; Crum v. Ward, 122 S.E.2d 18, 25-26 (W.Va. 1961).
(43.) Affett, 106 N.W.2d at 278; Ratner, 111 So.2d at 88.
(44.) Pearson, supra note 41.
(45.) DeWeese v. United States, 419 F. Supp. 170, 177 n.4 (D. Colo. 1976).
(46.) Affett, 106 N.W.2d at 278; Caley v. Manicke, 182 N.E.2d 206, 208-09 (Ill. 1962); Ratner, 111 So. 2d at 88.
(47.) Hughes v. Kilgore, 43 Cal.Rptr. 820 (Cai.App. 1965); Fintak v. Catholic Bishop of Chicago, 366 N.E.2d 480, 485 (Ill. 1977); Lougon v. Era Aviation Inc., 609 So.2d 330, 346 (La. 1992); Harper v. Higgs, 169 A.2d 661,668-69 (Md. 1961); Furlow v. Laclede Cab Co., 502 S.W.2d 373, 376 (Mo. 1973); Hoyle v. Van Horn, 387 P.2d 985, 986 (Or. 1963); Ruby v. Casello, 201 A.2d 219, 220 (Pa. 1964).
(48.) Henne, 146 A.2d at 398; Caley, 182 N.E.2d at 208; Giant Food Inc. v. Satterfield, 603 A.2d 877, 881 (Md. 1992); Chamberlain v. Palmer Lumber Inc., 183 A.2d 906, 908-09 (N.H. 1962); Gilborges v. Wallace, 379 A.2d 269, 279 (1977), aff'd in part, remanded in part on other grounds, 396 A.2d 338 (N.J. 1978); Paley v. Brust, 250 N.Y.S.2d 356, 357 (App.Div. 1st Dep't 1964); Jenkins v. Harvey C. Hines Co., 141 S.E.2d 1, 7 (N.C. 1965); King v. Ry. Express Agency Inc., 107 N.W.2d 509, 516-17 (N.D. 1961); Boop v. Balt. & O. R. Co., 193 N.E.2d 714, 728 (Ohio 1963); Harper, 124 S.E.2d at 59; Certified T.V. & Appliance Co. v. Harrington, 109 S.E.2d 126, 131 (Va. 1959); Crum, 122 S.E.2d at 26-27; Affett, 106 N.W.2d at 280.
(49.) 72 F.3d at 1016. See also Mileski, 499 F.2d at 1172; Thomas, 1998 WL 542321, at '12.
(50.) Clark v. Tulare Lake Dredging Co., 112 P. 564, 572 (Cai.App. 1910).
(51.) It is improper to refer to excluded matters either directly or indirectly. Slane v. Jerry Scott Drilling Co., 918 F.2d 123, 128 (10th Cir. 1990). Reversible error is committed when counsel's closing argument introduces extraneous matter that has a reasonable probability of influencing the verdict. Rommel-McFerran Co. v. Local Union No. 369, Int'l Bhd. of Elec. Workers, 361 F.2d 658, 661 (6th Cir. 1966); Janich Bros. Inc. v. Am. Distilling Co., 570 F.2d 848, 860 (9th Cir. 1977). Note that counsel may properly refer matters of common knowledge or an illustration drawn from common experience, history or literature. Tenorio v. United States, 390 F.2d 96, 99 (9th Cir. 1968).
(52.) Mileski, 499 F.2d at 1172.
(53.) See Raitz et al., supra note 7, at 385-395.
(54.) Counsel may not allude to personal opinions or beliefs regarding the merits of the case and arguments to the jury. Stemmons v. Mo. Dep't of Corrections, 82 F.3d 817, 821-22 (8th Cir. 1996). This conduct is specifically prohibited by Rule 3.4(e) of the American Bar Association Model Rules of Professional Conduct.
(55.) Soloria v. Atchison, Topeka & Santa Fe Ry. Co., 224 F.2d 544, 547 (10th Cir. 1955); Koltz v. Sears, Roebuck & Co., 267 F.2d 53, 55 (7th Cir. 1959); Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985).
(56.) DeWeese, 419 F.Supp. at 176-77.
(57.) Affett, 106 N.W.2d at 278; Caley, 182 N.E.2d at 208-09; Ratner, 111 So. 2d at 88.
IADC member Don Rushing is a senior partner and co-chair of the Trade Regulation and Consumer Liability Division of Gray Cary Ware & Freidenrich LLP in San Diego and concentrates his practice in product liability, toxic tort and aviation litigation. He received a J.D. from the University of California at Los Angeles in 1978, an M.B.A. from the University of Southern California in 1973 and a B.S. from the U.S. Air Force Academy in 1970.
Linda Lane is an associate at the same firm, having graduated Order of the Coif from the University of Colorado School of Law in 1998 and a B.A. from the University of California at Irvine in 1994. She clerked for the U.S. District Court Lewis T. Babcock in the District of Colorado in 1999-2000.
An associate at the same firm, Erin Bosman graduated magna cum laude and Order of the Coif from the University of San Diego School of Law in 1999. She received a B.S. degree from the University of San Diego in 1994.
The authors thank Kevin Hilliard, Executive Vice President, Claims, of Global Aerospace Corp. for his thoughtful insights that prompted this article.…