Anchoring exploits the cognitive tendency to adjust from an initial reference point rather than reasoning independently. In litigation it means proposing a number in voir dire, opening statement, or closing argument that frames the jury's assessment of non-economic damages.

Plaintiff counsel commonly anchor high; defense counsel must decide whether to offer a counter-anchor or decline to suggest any figure.

Alternative Names:

Damages Anchoring, Numerical Anchoring

Why it Matters?

Anchoring is one of the most consistent contributors to outsized verdicts, because non-economic damages have no evidentiary ceiling and a suggested number fills that vacuum. The defense dilemma is genuine: proposing a counter-number risks conceding liability, while declining leaves the plaintiff's figure as the only reference point. Many experienced defense counsel now argue an alternative figure conditionally rather than leaving the anchor unanswered.

Frequently asked questions

Should the defense offer a counter-anchor?

Should the defense offer a counter-anchor?

It is a judgment call. Leaving a high number unanswered concedes the frame, while proposing a figure risks appearing to accept liability. Conditional alternative figures are a common compromise.

Are specific dollar suggestions always permitted?

Are specific dollar suggestions always permitted?

No. Some states restrict or prohibit suggesting figures for non-economic damages, and per diem arguments are barred in several jurisdictions.