Stopping Counsel from Floating Large Non-Economic Damages Numbers to the Jury During Opening Statements
During closing argument, plaintiff’s counsel will present damages figures, even ascribing numbers to the non-economic damages such as pain and suffering. The reason is simple, to attempt to argue to a jury a number that encapsulates all the testimony and evidence the jury heard throughout trial. A recent trend, however, among plaintiff’s counsel is to float large damages numbers for non-economic damages, like pain and suffering, during opening statements. The purpose is to “anchor” the jury—to expose the jury to a large damages figure early before the introduction of evidence to try to desensitize the jury to the large damages figure once the trial concludes.
Floating large non-economic damages to the jury during opening statements is improper. The purpose of opening statements is to introduce jurors to the facts. Arguments made during opening statements are therefore prohibited, as opposed to closing arguments.[i] Given the amorphous nature of non-economic damages—placing a number value on pain and suffering, for example—proposing a non-economic damages number to a jury during opening statements not a statement based on the fact but argument.
Defense counsel should seek to move in limine to limit or outright exclude such arguments during opening statements.
I. Argument During Opening Statements is Improper
The purpose of opening statements is to introduce jurors to the facts. For that reason, an opening statement is not an occasion for argument.[ii] Counsel is prohibited, for example, from arguing the law during the opening statements.[iii] Instead, counsel look to preview the anticipated testimony, exhibits, and other evidence. As one commentor has stated, “[t]hink of the opening statement as a forecast, designed to provide a general understanding and provoke further interest, similar to the kind of preview that you might see for a television movie.”[iv] Examples of permissible statements typically include, “the evidence will show X.” Examples of impermissible statements during openings would be ones that express a lawyer’s opinions or ones that express conclusions from the facts or the law. As the American Bar Association states, “Ask yourself this question: Are you describing to the jury what a witness or document states, or are you drawing a conclusion from the testimony or the document? Only the description is permissible in your opening statement; the conclusion must be saved for your closing argument.”[v]
This is in stark contrast to closing arguments, where arguments can be made to the jury, with the understanding that the arguments are not evidence. Because arguments are permitted during closing, counsel can propose damages figures—even for non-economic damages—at closing. Typically, in these situations, the use of lump sum figures is permitted. However, the supervision of closing arguments is left to the trial court’s discretion. The lump sum figure is permitted based on the understanding that the figure is based on argument, not based on a statement of fact.[vi] Trial courts repeatedly remind juries of such.[vii]
II. What is Anchoring?
Recently, members of the plaintiff’s bar have sought to float large non-economic damages numbers to the jury during opening statements in an attempt to desensitize the jury to the large damages figure. Studies have shown that his attempt of “anchoring” can be highly effective. As one court observed, “[w]hen asked to make a judgment, decision makers take an initial starting value (i.e., the anchor) and then adjust up or down. Studies underscore the significance of that initial anchor; judgments tend to be strongly biased in its direction.”[viii] The thinking is that the longer the jury sits with large non-economic damages numbers, the less the shock value will be as the trial progresses. This is in contrast to exposing the jury to a non-economic damages number at closing, where the potential to shock the jury is higher, given that the members of the jury have already been exposed to the evidence.
The effects of “anchoring” cannot be understated. Even arbitrary or extreme anchors can have large effects. In one study, for example, “a request for $500,000 produced a median mock jury award of $300,000, whereas a request of $100,000, in the identical case, produced a median award of $90,000.”[ix]
An attempt to disabuse oneself of the effects of anchoring have also shown to be futile. Studies have recognized that “[a]n anchor is operating even when people think that it is not; . . . making people aware of an anchor’s effect does not reduce anchoring. It follows that ‘debiasing’ is very difficult in this context.”[x]
III. Exclusion at Trial
However, it is well-settled that anchoring is inappropriate during opening statements. Unlike economic damages figures, which typically rest on expert evidence regarding lost wages or the amount of past or future medical care, non-economic damages numbers are not “facts.” Instead, an attorney’s proposed non-economic number is merely argument.
Indeed, other jurisdictions have recognized the prejudicial effect that floating non-economic numbers can have on the jury. In New York, for example, a court has called the practice of floating non-economic numbers to a jury in opening statements as “unprecedented.”[xi] The New York court found that such a statement during opening statement warranted a mistrial.[xii]
Defense counsel should therefore seek to exclude or limit any attempt by plaintiff’s counsel to float numbers for non-economic damages by moving in limine to bar counsel from mentioning any non-economic damage numbers during opening. After seeking to bar or limit such impermissible comments, defense counsel should be ready to object in a timely fashion should plaintiff’s counsel attempt to mention any non-economic damage numbers during opening. Finally, defense counsel should then seek a curative admonition or, in some extreme circumstances, seek a mistrial.
Austin Doan is an associate at Boardman & Clark LLP in Madison, where he is a member of the firm’s litigation practice group. His practice primarily lies in the area of commercial litigation, real estate, and insurance defense. Before joining the firm, Austin was an attorney with a local Madison law firm, focusing on class action and commercial litigation. Austin obtained his undergraduate degree cum laude from the University of Southern California in 2014 and his law degree from the University of Wisconsin Law School in 2017.
[i] See U.S. v. Dinitz, 424 U.S. 600, 612 (1976) (“An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument.”) (Burger, C.J., concurring).
[ii] See Testa v. Vill. of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir. 1996).
[iii] See Schwartz v. Sys. Software Assocs., Inc., 32 F.3d 284, 288 (7th Cir. 1994).
[iv] Pamela W. Carter, The Opening Statement, 61 No. 12 DRI For Def. 60.
[v] American Bar Association, Effective Opening Statements, available online at https://www.law.uh.edu/center4clp/streetlaw/Mock%20Trial/Mock%20Trial%20AY%202017-18/Handouts%20&%20Activities/Opening%20Statements%20Handout%202.pdf.
[vi] See Merco Distrib. Corp. v. O.R. Engines, Inc., 71 Wis. 2d 792, 795, 239 N.W.2d 97 (1976) (“Arguments or statements made by counsel during argument are not to be considered or given weight as evidence.”).
[vii] See Wis. JI-Civil 110 (Arguments of Counsel).
[viii] U.S. v. Rojas, No. 06CR269 MRK, 2010 WL 5253203, at *4 (D. Conn. Dec. 13, 2010) (quoting Nancy Gertner, Thoughts on Reasonableness (2007) 19 Fed. Sent’g Rep. 165, 167-68).
[ix] Cass R. Sunstein, U. of Chicago Law & Economics Working Paper No. 165, 2002, available online at https://chicagounbound.uchicago.edu/law_and_economics/228/ (internal citation omitted).
[x] Cass R. Sunstein, U. of Chicago Law & Economics Working Paper No. 165, 2002, available online at https://chicagounbound.uchicago.edu/law_and_economics/228/ (internal citations omitted); see also Christopher T. Stein & Michelle Drouin, Cognitive Bias in the Courtroom: Combatting the Anchoring Effect Through Tactical Debiasing, 52 U.S.F.L. Rev. 393, 398, 404 (2018) (anchoring affects “the starting point from which one adjusts an estimate” and “[r]esearch has shown anchoring has a strong effect on civil court jury awards”; people “genuinely do not see themselves as biased . . . [and] are unwilling or unable to recognize their bias, even when told ....”); 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, 522, 534 (1996) (summarizing “studies demonstrate[ing] that juror decision making is influenced by monetary anchors” and finding that “anchoring effects represent biases rather than the use of relevant information”).
[xi] See Miller v. Owen, 184 Misc. 2d 570, 572, 709 N.Y.S.2d 378 (Sup. Ct. 2000) (“plaintiff's counsel took the unprecedented tactic of, during opening statement, telling the jury that he intended to ask them to award his client the amount of $[600,000] [for forty years of future pain and suffering.]”).
[xii] See id. at 184 Misc. 2d at 572; see also § 45:19. Permissible scope of opening statements, 4A N.Y.Prac., Com. Litig. in New York State Courts § 45:19 (5th ed.) (“The law therefore permits only a prayer for general relief for such damages, both in the pleadings and in opening statements. Specific amounts for pain and suffering can be suggested in closing argument, but will be subject to statutorily mandated cautions to the jury, to the effect that this is mere argument by the attorney and they are not bound to agree.”) (citations omitted).