Q:  How did the defense lawyer anchor general damages at trial?
 
A:  He got hooked on Plaintiff’s counsel.  I know, I know.  That’s pretty weak.  But, you kept reading, so the joke’s on you.  Kidding.  It was bad.
 
Welcome to the “Ask a Defense Lawyer” corner, where I will try to answer a question from one of you lovely lawyers in Washington.  This time, I’ve been asked to provide advice on how to anchor a general damage award at trial.  I have a few suggestions that I suspect have been said by many others before me.  In fact, a King County Bar Bulletin article from 2023 offers helpful tips for both defense and plaintiff’s attorneys that includes large-scale studies and convincing statistics.[1]  My thoughts:
 

1. Start fighting pre-trial.  In a recent trial, I filed a motion in limine, seeking exclusion of any comments, arguments, etc. by Plaintiff’s counsel during voir dire and opening statements related to general damages or a verdict amount.  I won by arguing that when Plaintiff’s counsel asks prospective jurors whether they would be able to act fairly in a case where Plaintiff is asking for a “large” or “substantial” award or for “over a million dollars,” etc., the jury assumes the case value is high before they even see any evidence.  The primacy effect, I argued, provides an unfair advantage to Plaintiff’s attorneys who decide to throw out large numbers before any actual evidence is heard in the case.  The judge agreed and said Plaintiff’s counsel could ask the venire generally if they had a problem assigning monetary damages at the end of the case if they found the defendants liable, but could not speak to any amount – either specifically or generally.  I thought this was a win.  (We obtained a defense verdict, by the way.)

 

2. Offer an alternative (aka counter-anchoring).  Find specific numbers throughout the case that you can reference.  If medical bills are not an option, emphasize anything in the case that re-sets the jury’s frame of reference.  For example, even if wages are not being sought, you can use some of plaintiff’s wage history to anchor a reasonable verdict.  Then, repeat those numbers, just as the plaintiff will do, early and often.  There are cases where it does not make sense to provide a counter-anchor, so get input from experienced trial attorneys you trust.    

 

3. Be prepared and be nice.  My final advice is to follow the golden rule.  At every opportunity, show the jury that you are the A team (no, not the 1980s series with Mr. T).  Be prepared every day, keep your table clean, and look calm – like you are always ready for whatever comes your way.  Be courteous to every single person in the courtroom, including opposing counsel, even if they have treated you like scum pre-trial.  You want the jury to respect you, regardless of how they may feel about your client, so that when you offer them an alternative to Plaintiff’s $100 million ask—whether it is $1,000,000 or a defense verdict—they will hear you because they trust you.   

 
Until next time….
 
 
 
Mary Butler is a shareholder at Bullivant Houser Bailey in Seattle.  She defends clients against claims of medical malpractice, wrongful death, and catastrophic injury and also leads the firm’s Sports Law and Maritime practice groups.  She helps clients navigate litigation with efficiency, building trust throughout the process by effectively communicating at each step. Whether she is asked to defend a doctor in a med mal case or an organization in an abuse case, Mary uses her tenacity and empathy to develop a practical case strategy to protect her clients.
 

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