Legal & DebateDUAL-USE

Per Diem Damages Anchoring

What it is

Suggesting a specific dollar figure for non-economic damages, either as a lump sum or by multiplying a small daily amount across the plaintiff's life expectancy, so that the number becomes the jury's starting point.

How it works

Anchoring (Tversky and Kahneman 1974) is the tendency to estimate from a supplied starting point and adjust too little. Damages for pain and suffering have no market price, so the jury's estimate is unusually anchor-dependent. Chapman and Bornstein (1996) found that mock jurors' awards rose with the plaintiff's request across requests ranging from 100 dollars to 1 billion. The per diem form, "a dollar an hour for the pain, for the 40 years she has left", makes a large number feel like a modest one, because each unit is small and the multiplication is done for the jury. Campbell, Chao, Robertson, and Yokum (2016) tested defense responses in jury simulations: ignoring the anchor was the worst option, attacking it helped, and offering a counter-anchor, a specific lower number, produced the lowest awards, though defense lawyers fear that naming a number concedes liability. Jurisdictions differ: some states bar per diem arguments, others allow a lump-sum request but not a formula. The tell is that the number was chosen for its psychological effect rather than derived from the evidence.

Real-world examples

  • •Chapman and Bornstein (1996) gave mock jurors the same personal-injury case with requests of 100 dollars, 20,000 dollars, 5 million dollars, and 1 billion dollars; awards tracked the request, and the largest request still produced the highest awards even as it strained credibility.
  • •The per diem argument dates at least to the 1950s; the New Jersey Supreme Court barred it in Botta v. Brunner (1958) on the ground that it lends an illusion of precision to a figure with no evidentiary basis, while many other states permit it as argument.
  • •Campbell, Chao, Robertson, and Yokum (2016) ran simulations of defense responses to a plaintiff's anchor and found that ignoring the number was the worst choice, a result that changed defense-bar advice about whether to name a figure.
  • •Settlement negotiation uses the same lever in reverse: an early, extreme demand or offer anchors the range for everything that follows, which is why mediators ask for a first number with care.

Ethical guidelines

Where the line is

Translating proved harm into a figure the jury can evaluate, with each input tied to evidence, is legitimate argument where the rules allow it; picking a number for its anchoring effect, or using a per diem formula to make an unsupported total look like arithmetic, exploits the jury's lack of any other reference point.

  • ●Suggesting a damages figure is permitted in many jurisdictions and can help jurors translate proved harm into money; the legitimate version ties the number to evidence (life expectancy, medical testimony about the course of the condition, proved lost capacities).
  • ●A number chosen for its size rather than derived from the record is an appeal to anchoring, and the courts that bar per diem arguments do so because the formula manufactures precision the evidence does not contain.
  • ●Counsel must follow local rules on whether a specific figure or a formula may be argued, and may not present the figure as evidence; the instruction that arguments are not evidence applies.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Jurors: before discussing any number a lawyer suggested, decide the damages categories from the evidence (what was proved about medical costs, lost earnings, and the duration and severity of pain) and only then compare your figure with the lawyers' figures; forming your own estimate first is the documented counter to anchoring.
  • ►Jurors: a per diem formula is arithmetic, not evidence; ask whether each input (the daily rate, the number of years) was proved by a witness.
  • ►Opposing advocates: do not ignore the anchor. Either attack its basis ("no witness gave you that number") or, if local rules and your case theory allow, offer a specific, evidence-based alternative; the 2016 simulations found silence to be the worst option.
  • ►Opposing advocates: consider a motion in limine on per diem or lump-sum arguments where your jurisdiction restricts them, and request an instruction that the requested figure is argument only.

From the Defense Playbook

Recognize Improper Argumentminutes

Learn the short list of things a lawyer is not supposed to say to a jury (put yourself in the victim's place, take my word for it, send a message, the other side has to prove its innocence) so that, as a juror or an observer, you can notice them and set them aside. (Educational; the rules vary by jurisdiction.)

Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.

References

  1. Chapman, G. B., & Bornstein, B. H. (1996). The more you ask for, the more you get: Anchoring in personal injury verdicts. Applied Cognitive Psychology, 10(6), 519-540
    Mock-juror awards rise with the amount requested, across requests from 100 dollars to 1 billion dollars.
  2. Campbell, J., Chao, B., Robertson, C., & Yokum, D. V. (2016). Countering the plaintiff's anchor: Jury simulations to evaluate damages arguments. Iowa Law Review, 101, 543-571
    Comparison of ignoring, attacking, and counter-anchoring as defense responses to a damages anchor.
  3. Tversky, A., & Kahneman, D. (1974). Judgment under Uncertainty: Heuristics and Biases. Science, 185(4157), 1124-1131 · link
    The anchoring-and-adjustment heuristic that damages requests exploit.
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