Anchoring is most often associated with closing argument, but the technique may be used as early as voir dire and may continue throughout trial. Plaintiff’s counsel ordinarily seek to establish high anchors, while defense counsel may choose to set anchors of their own with low numbers. But there are limits. Texas Rule of Civil Procedure 269(e) provides that “[c]ounsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel.” “Unsubstantiated anchoring” occurs when trial counsel references values or things that have no rational connection to the case. Recent decisions from Texas and New York courts analyze when anchoring goes too far such that it constitutes impermissible argument requiring a new trial or a reduction of the damages awarded.
Texas Rejects Unsubstantiated Anchoring for Noneconomic Damages
The Texas Supreme Court discussed unsubstantiated anchoring and the sufficiency of evidence supporting noneconomic damages in Gregory v. Chohan. Chohan involved a wrongful death action in which plaintiff’s counsel argued in closing that the amount of the plaintiff’s noneconomic damages was analogous to a $71 million Boeing F-18 fighter jet and a $186 million painting by Mark Rothko. The court held that “[u]nsubstantiated anchors like those employed here have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.” Since “the only arguments provided to justify an amount of damages were impermissible appeals to irrelevant considerations, such as fighter jets,” the court reversed and remanded the case, concluding that there was no evidence to support the amount of noneconomic damages awarded by the jury.
The Chohan court suggested that instead of relying on “unsubstantiated anchors and unexamined ratios,” parties should consider relying on “direct evidence supporting quantification of an amount of damages, such as evidence of the likely financial consequences of severe emotional disruption in the plaintiff’s life” or an amount of money that “would enable the plaintiff to better deal with grief or restore his emotional health.” The court explained that the examples it offered were not intended to suggest that “in all cases there must be direct evidence of a quantifiable amount of damages,” but merely to reiterate the “requirement that the amount of damages must have a rational basis grounded in the evidence.”
Three recent Texas appellate decisions cited Chohan when discussing whether the plaintiff’s anchoring techniques went too far and constituted improper argument. In Alonzo v. John, trial counsel compared the value of the plaintiff’s damages to “a van Gogh painting worth $90 million, multi-million-dollar athlete and CEO salaries, and the value of [the defendant’s] trucking fleet and warehouses.” While not reaching the issue of unsubstantiated anchoring in its opinion, the Texas Supreme Court mentioned in a footnote that counsel’s reference to the painting, salaries, fleet, and warehouse as anchors “are of the same ilk” as the unsubstantiated anchors disapproved in Chohan.
In Team Industrial Services, Inc. v. Most, trial counsel argued that a “painting sells for $350 million” and “I don’t think there is a person that would say that a painting is more valuable than a human life.” In its opinion, the Texas First Court of Appeals described those comments as “improper argument” and held that the trial court erred in entering judgment on the jury’s damages findings because the damages were “not supported by the evidence.”
Most recently, the Texas Fifth Court of Appeals discussed unsubstantiated anchoring relative to proof of economic damages. In Combs v. Crepeau, plaintiff’s counsel argued during closing argument that the jury should award the plaintiff $350,000 in future economic damages because “if [the plaintiff] ‘lives as long as his dad, he’ll collect another $350,000’” in survivor benefits. The plaintiff’s father’s life span was used as an anchor for calculating future economic damages, but there had been no evidence of the plaintiff’s life span presented at trial. Citing Chohan, the court stated: “Counsel’s argument also resembles unsubstantiated anchoring, a practice on which claimants cannot rely to sustain a non-economic damages award. Although the Texas Supreme Court has not addressed unsubstantiated anchoring in relation to economic damages, we find counsel’s estimate of [the plaintiff’s] life span similarly unreliable to support the future economic damages awarded here.”
While the Texas Supreme Court has not yet spoken to the applicability of Chohan’s rationale to economic damages arguments, Texas practitioners should be mindful of the decisions in Chohan, Alonzo, Most, and Combs, as well as the language in Texas Rule of Civil Procedure 269(e), when creatively crafting arguments about the value of either economic or noneconomic damages. And in order to reduce the risk of successful post-trial motions or appeals attacking improper jury argument, trial counsel should ensure they are prepared with an explanation of how and why any anchors used in closing have a rational connection to the facts and evidence in the case.
New York Limits Anchoring to Closing Argument
Efforts to address concerns over anchoring techniques are not unique to Texas, and other jurisdictions like New York have dealt with those concerns differently. New York’s Civil Practice Law and Rules (CPLR) specifically allow the use of anchoring in closing argument in personal injury or wrongful death cases. Section 4016 provides:
(b) In any action to recover damages for personal injuries or wrongful death, the attorney for a party shall be permitted to make reference, during closing statement, to a specific dollar amount that the attorney believes to be appropriate compensation for any element of damage that is sought to be recovered in the action. In the event that an attorney makes such a reference in an action being tried by a jury, the court shall, upon the request of any party, during the court’s instructions to the jury at the conclusion of all closing statements, instruct the jury that:
(1) the attorney’s reference to such specific dollar amount is permitted as argument;
(2) the attorney’s reference to a specific dollar amount is not evidence and should not be considered by the jury as evidence; and
(3) the determination of damages is solely for the jury to decide.
Attempts to restrict the use of anchors in New York state court trials have failed, but courts have found other ways to dull the effect of improper anchoring. In Hedges v. Planned Security Service Inc., plaintiff’s counsel took advantage of New York’s anchoring rule during closing argument by suggesting $50 million as an anchor for the plaintiff’s future pain and suffering. The jury awarded $29 million for the plaintiff’s future pain and suffering. On appeal, the court rejected an anchoring-related challenge, stating, “This Court declines the invitation of amici to announce a new rule prohibiting the practice of anchoring.” Instead, the court used its authority under CPLR 5501(c) to reduce the future pain and suffering award to $10 million. The court held that “the jury’s award of $29 million, reduced to $14.5 million by the trial court, was higher than in any other case cited, including cases involving similarly devastating injuries, thus warranting a reduction.”
Similarly, in Perez v. Live Nation Worldwide, Inc., plaintiff’s counsel suggested $85 million as an anchor for the plaintiff’s pain and suffering during closing argument. The jury returned a verdict for $85.75 million in pain and suffering. While the defendant did not object to the plaintiff’s suggestion of an anchor during closing argument, the defendant later objected to the anchor as “far in excess of what could be deemed reasonable compensation.” On appeal, the court rejected the defendant’s challenge to the anchor used in the plaintiff’s closing argument, stating, “We decline the invitation of defendant and amici to announce a new rule prohibiting the practice of anchoring.” However, the court reduced the pain and suffering award to $20 million, finding that “the jury’s award of $85.75 million, reduced to $40.6 million by the trial court, is significantly higher than the awards in any of the cases cited, including those involving similarly devastating injuries.”
An Effective but Risky Strategy
The general practice of anchoring can be useful and effective, but recent Texas opinions resulting in orders for new trials and New York opinions reducing noneconomic damages demonstrate a judicial willingness to be more vigilant about improper jury argument and the consequences of unsubstantiated anchoring. Trial counsel should heed the warnings delivered in these recent decisions scrutinizing unsubstantiated anchoring and should be aware of the real risks associated with using anchors that have no rational connection to the case and the evidence presented at trial.
