Over the past few years, the plaintiff bar has expanded its use of improper anchoring tactics. Historically, improper anchoring was seen as a risky tactic in which a plaintiff’s counsel would suggest an outrageous figure for pain and suffering during summation in the hope that the lay jury would either award it or split the difference (cut the suggested figure by half) and, either way, return an excessive or runaway verdict. Plaintiff counsel deployed the tactic infrequently through the turn of the century for fear of alienating the jury by appearing greedy.
Two interrelated factors happened to change this dynamic. First, the plaintiff bar worked extremely hard in the intervening years with great success to shed its “ambulance chaser” stereotype by marketing itself as the “protector of the vulnerable”. Second, with the rise in Reptile and punitive tactics spawned in part by the publication of the Reptile handbook, the plaintiff bar also discovered that juries were not alienated by outrageous anchors as long as they were preceded by Reptile commentary essentially to “prime” the jury to punish the defendant rather than compensate the plaintiff with its award.
This is not speculation. I recall sitting outside a courtroom with one of New York’s top plaintiff attorneys in 2006 during deliberations on a catastrophic personal injury trial, during which he conceded to me that he was worried he had asked the jury for too large a figure (it was not even eight figures). A decade later in 2016, that same attorney felt no trepidation in requesting nearly $100 million for a comparable injury. He fed the jurors a steady diet of Reptile tactics from start to finish and they dutifully awarded the requested figure. Our research confirms that this two-step strategy (Reptile + improper anchor) preceded every New York nuclear verdict returned from 2010-2022. The same is almost certainly true of most nuclear verdicts in other jurisdictions.
Now we get to the point of this alert: the improper anchoring tactic has evolved. Whereas the plaintiff bar formerly used it exclusively during summation and only by suggesting an exorbitant figure for plaintiff’s pain and suffering, it has now begun to inject improper anchors into jury selection, opening statements, and even trial witness examinations. Counsel have also gotten more inventive in fashioning their anchors by, for instance, referring to priceless pieces of art, the salaries of premier athletes and CEOs, the cost of elite fighter jets, $100 million contract disputes, and annual federal budgets to “guide” (read: pollute) the jury’s determination of pain and suffering damages. They also have developed different methodologies to personally “vouch” for the exorbitant figures they suggest.
As the plaintiff bar’s improper anchoring tactics have evolved, so must the opposition and defenses to it.
Importantly, the fight against the plaintiff bar’s abuses of the anchoring tactic has gained some traction. Thanks to the outstanding briefing and argument by Tom Wright of Wright Close & Barger (an excellent appellate attorney and really nice guy) and several amici, the Texas Supreme Court in Gregory v. Chohan, No. 21-0017, 2023 WL 4035886 (Tex. June 16, 2023) sharply rebuked the plaintiffs’ counsel’s tactic of referencing “the price of fighter jets, the value of artwork, and the number of miles driven by [defendant’s] trucks” in seeking a “proper” pain and suffering award (including mental anguish and loss of companionship suffered by bereaved family). This decision now stands as a landmark damages case that, among other things, emphatically criticizes and rejects the tactic now formally known as “unsubstantiated” anchoring, defined as “a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case.” Id. at 557.
We have integrated this argument and decision into our New York anti-anchoring motion in limine, and we will happily provide a copy upon request. It now includes separate arguments to preclude plaintiff counsel from: (1) engaging in “unreasonable” anchoring, i.e., the suggestion of a patently unreasonable figure for pain and suffering damages to the jury during summation that counsel knows could never be sustained on appeal; (2) engaging in “unsubstantiated” anchoring, i.e., the drawing of inappropriate and irrelevant analogies to “guide” the jury’s determination of the pain and suffering award; (3) vouching personally for the given anchor to the jury; and, at a minimum, (4) anchoring during jury selection, openings or trial (anytime outside of summation, as specifically circumscribed by the text of the NY statute CPLR 4016(b)). We hereby offer a very abbreviated discussion of each, in reverse order.
The text of CPLR 4016(b) specifically only permits anchoring during summation. Pursuant to the universal principle of statutory interpretation, the maxim expressio unius est exclusion alterius, plaintiff’s counsel should not be allowed to suggest a figure or analogue for plaintiff’s pain and suffering damages, no matter how reasonable or unreasonable, during any pre-summation stage of trial (voir dire, opening remarks, witness examinations, etc.). See N.Y. Stat. Law § 240 (McKinney) (“The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.”).
As such, and consistent with a statute interpreted in derogation of the common law prohibition against such remarks (see Matter of Jacob, 86 N.Y.2d 651, 657 (1995); accord McKinney’s Cons Laws of NY, Book 1, Statutes § 301, Comment a), defendants should file a motion in limine pre-emptively objecting to all anchoring tactics prior to summation and should seek a mistrial to the extent that plaintiff utilizes these tactics before then.
If the foregoing were not enough, CPLR 4016(b), as originally enacted in 2003, actually permitted reference to a specific dollar amount “during opening statement and/or during closing statement”, but the very next year the Legislature struck the language “during opening statement and/or”. This is, unquestionably, an absolute subtraction of this statutory right expressly limiting the permission to summation only. Yet another fundamental principle of statutory construction leaves this point beyond peradventure. See N.Y. Stat. Law § 193 (McKinney) (“The Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law.”).
“Vouching” By Plaintiff’s Counsel For His Anchor Is Impermissible;
“False Vouching” Is Even Worse
The limited permission to suggest a damages figure afforded by CPLR 4016(b) does not include any accompanying permission for plaintiff’s counsel to personally “vouch” to the jury for a proposed amount as a reasonable one, or one that their so-called expert legal experience tells them is appropriate, or anything of the kind. To the contrary, the statute is in derogation of the common law and must be strictly construed for that reason. See Matter of Jacob, supra. Attorney vouching is improper in any context, and it is black-letter law that counsel may not turn himself into an unsworn witness and place his credibility on the side of a party to vouch for “personal knowledge of facts in issue”. See 105 NY Jur Trial §354, 362, 263 (it is also a violation of the Code of Professional Responsibility, DR 7-106[C], and the Rules of Professional Conduct, 22 NYCRR §1200.0, Rule 3.4(d)(2)(3)).
Even if vouching itself weren’t already problematic, vouching for an unreasonable figure that is multiples of the highest award ever allowed by the Appellate Division for a similarly-situated plaintiff as “reasonable” under CPLR 5501(c) is false vouching in one’s capacity as an officer of the court and raises serious ethical concerns. As such, defendants should file a motion in limine pre-emptively objecting to all vouching-based anchoring tactics and should seek a mistrial to the extent that plaintiff utilizes them.
“Unsubstantiated” Anchoring Is Impermissible
While the irrelevancy and impropriety of “unsubstantiated” anchoring is evident on its face, far too many defense counsel have permitted this unfairly prejudicial tactic without lodging a single objection. Fortunately, this anchoring variant was recently identified and limited in the seminal case of Gregory v. Chohan, No. 21-0017, 2023 WL 4035886 (Tex. June 16, 2023) discussed above, where the Texas Supreme Court set aside an exorbitant jury award of $39 million and ordered a new trial on damages, noting that plaintiff’s counsel failed to “rationally connect the evidence to an amount of damages” and instead “encourag[ed] the jury to base an ostensibly compensatory award on improper considerations that have no connection to rational compensation.” Id. at *4. The Texas Supreme Court also noted that a jury’s discretion in crafting verdicts is not unlimited, and that it cannot simply “pick a number and put it in the blank.” Id. at *10, 24. Instead, the jury’s task, whatever the case, is always the same: “They must find an amount that, in the standard language of the jury charge, ‘would fairly and reasonably compensate’ for the loss.” Id. at *12. Importantly, the Texas justices held that the “unsubstantiated anchoring” by plaintiffs’ counsel in that case was patently improper and that the irrelevant analogies provided as to the cost of a $71 million Boeing F-18 fighter jet or a $186 million painting by Mark Rothko or the number of miles driven by defendant’s drivers the year prior to trial did not bring jurors any closer to gaining a sense of how to compensate plaintiffs for their injuries. Id. at *17. The Court there then made clear that the insidious tactic employed by plaintiffs’ counsel was improper because its “self-evident purpose” was “to get jurors to think about the appropriate damages award on a magnitude similar to the numbers offered, despite the lack of any rational connection between reasonable compensation and the anchors suggested.” Id. The Texas Supreme Court finished by stating that it had an obligation to prevent such tactics and that like any other jury finding, an award of damages must be subject to meaningful evidentiary review. Id. at *24.
As above, defendants should file a motion in limine pre-emptively objecting to “unsubstantiated” anchoring, and should seek a mistrial to the extent that plaintiff utilizes this tactic in any of its forms.
“Unreasonable” Anchoring Is Impermissible
We have previously and extensively written on this topic, its related factors, and underpinnings. See T.Capowski & J.Shaub, Improper Summation Anchoring Is Turning the New York Court System on Its Head and Contributing to the Demise of New York State, NYLJ 4/28/2020; T. Capowski, J.Watkins, J.Shaub, Ahead to the Past: The Evolution of New Rules of Engagement in the Age of Social Inflation and Nuclear Verdicts: Parts I, II, III, NYLJ 7/13/2020, 7/20/2020, 7/27/2020; T.Capowski, J.Watkins, S.Uvaydov, The Snake Attack Phenomenon: The Courts Must Stop Overlooking and Facilitating the Continued Poisoning of Our Jury System, NYLJ 3/4/2022.
Specifically, “anchoring” is the process by which an attorney is “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.” CPLR 4016(b). “Unreasonable” anchoring is the improper tactic whereby plaintiff counsel in summation recommends an astronomical figure for pain and suffering damages as “reasonable” compensation, despite their knowledge, as officers of the court, that the amount is many times higher than the highest amount ever deemed “reasonable” by the Appellate Division under CPLR 5501(c).
In practice, this “unreasonable” variant of an otherwise permissible tactic directly pits the limited permission afforded under CPLR 4016(b), a statute in derogation of the common law, against: (1) the restraining language of CPLR 4016(b) that limits the referenced figure to one that “the attorney believes to be appropriate compensation”; (2) the limitations, public policy and legislative intent underlying the earlier-enacted CPLR 5501(c) to restrain non-economic awards; (3) the 37 years of damages precedent handed down by the Appellate Division under CPLR 5501(c) establishing “reasonable” compensation that plaintiff’s counsel is charged with knowing; and (4) the prohibition against false statements of fact or law to a tribunal by attorneys under RPC 3.3(a)(1)-(2).
Making New Law
The majority of these issues have never been passed on by any New York appellate court, providing opportunities to make new, and favorable, law prohibiting or limiting these tactics, create a fairer legal system, and eliminate the inefficiencies created by outsized verdicts as well as the burdens and delays they create for a backlogged court system. Only one of these tactics has been addressed, in part, and only by a single one of New York’s four intermediate appellate courts, leaving it still ripe for review as well.
“Unreasonable” anchoring was raised by a host of amici curiae in three 2021 appeals to the First Department in response to a wave of nuclear verdicts precipitated by this improper practice. However, the Court misstated the relief sought, refused to directly address the involved issues of statutory interpretation and public policy, and denied leave to permit the Court of Appeals to curb this discreditable practice once and for all. See Hedges v. Planned Sec. Serv. Inc., 190 A.D.3d 485, 489 (1st Dep’t 2021) (defendant objected to improper $58 million anchor and 24 amici curiae entities supported relief on this issue, but defendant failed to pursue the issue on appeal, arguably rendering it unpreserved; the Court remitted the pain and suffering verdict to $13 million and noted that it “declines the invitation of amici to announce a new rule prohibiting the practice of anchoring.”); Perez v. Live Nation Worldwide, Inc., 193 A.D.3d 517 (1st Dep’t 2021) (defendant pre-objected to improper $85 million anchor but did not object contemporaneously during summation as mandated by the trial court, arguably rendering the issue unpreserved, and 24 amici curiae entities supported relief on this issue; the Court remitted the verdict to $20 million and stated that “[w]e decline the invitation of defendant and amici to announce a new rule prohibiting the practice of anchoring (see Hedges, 198 AD3d at 489).”); Redish v. Adler, 195 A.D.3d 452 (1st Dep’t 2021) (failing to mention briefs or arguments of 25 amici on issue of improper $40 million anchor that was neither objected to nor raised by defendants on appeal, arguably rendering the issue unpreserved, while remitting the verdict to $10 million).
As can be seen by the ultimate remittiturs, the “unreasonable” anchors in these cases each generated pain and suffering verdicts approximately four times higher than the highest figure the First Department could sustain as constituting “reasonable” compensation, thus conclusively proving the “unreasonableness” of each counsel’s anchor and vindicating the defense-side arguments. The anchor in Hedges was $58 million and the highest amount the Court could permit as “reasonable” was $13 million; the anchor in Perez was $85 million, and the highest amount deemed “reasonable” was $20 million; the anchor in Redish was $40 million, and the highest amount deemed “reasonable” was $10 million.
While the plaintiff bar predictably interprets these decisions as holding that any anchor figure, no matter how unreasonable, is entirely permissible, we respectfully disagree with this view. Under the circumstances, the First Department’s terse declination to address unreasonable anchoring hardly qualifies as a repudiation of the statutory interpretation axioms and unambiguous public policy aims requiring circumscription of the practice. Nothing in CPLR 4016(b)’s limited permission licenses the abuses being committed under its auspices, which is why, to date, no attorney, court, or commentator has supplied a cogent defense of them.
To be 100% clear, while it certainly didn’t grant any relief on the issue, the First Department was never asked for the “new rule prohibiting the practice of anchoring” that it declined to announce. No party or amicus ever advocated such a prohibition. Moreover, by remaining silent on the statutory interpretation and policy issues, the Court did not, as the plaintiff bar pretends, greenlight the practice of “unreasonable” anchoring. The Court never held that no relief will be forthcoming from the practice on an individualized basis nor did it restrict the authority of trial courts to regulate “unreasonable” anchoring. It merely declined to comment or state an overarching rule. Accordingly, all the well-reasoned arguments outlined above and advanced by numerous defendants in recent years stand unrejected and the issue remains ripe for resolution by lower courts and the Appellate Division.
Furthermore, “unsubstantiated” anchoring, “pre-summation” anchoring, and “vouching” anchoring have not previously been raised or litigated before any New York appellate court. The impropriety of these tactics and the availability of various forms of relief should continue to be raised before all courts, including the First Department, until they are directly addressed and resolved by the Appellate Division and ultimately New York’s highest court, the Court of Appeals.
The long and the short of it is this: defendants have the better of the argument by leaps and bounds; plaintiffs have naught but misdirection and word salad to offer in support of their positions. See, e.g., Gregory v. Chohan, supra. It couldn’t be otherwise when the transparent goal of these improper tactics is to mislead lay jurors into rendering outrageous verdicts.
As with the effort to eliminate improper and unfair Reptile and punitive tactics from our courtrooms, the elimination of improper anchoring tactics will only occur through persistent repetition of these arguments to the various courts, the gradual education of the judges, law clerks, and law secretaries, and the ensuing realization by the plaintiff bar that the resort to these repeated, intentional, and improper tactics is indefensible, will not be tolerated, and will jeopardize their clients’ verdicts. It is the view of some factions of the plaintiff bar that it is simply performing its role by constantly pushing the envelope of trial tactics (this is a discussion for another day); regardless, it is defense counsels’ job to constantly pre-object, contemporaneously object, and to unwaveringly identify and re-establish the bounds of proper trial conduct and relevant content for the protection of their clients’ rights in the trials at hand, for the fairness of future trials, and for restoring the integrity of the judicial process for all litigants.
Efforts to curb plaintiff counsel excesses have been needlessly hampered by two primary obstacles. The first is a reluctance by most defense trial counsel to object during summation or to otherwise preserve exception to misconduct. This non-interventionist approach, which grew out of the fundamentally courteous impulse to permit one’s adversary to present his case without interruption, is now obsolete. It is a relic of a bygone era in which both parties could be expected to adhere to settled bounds of trial advocacy. In today’s climate, non-intervention not only goes unreciprocated but allows the above misconduct to proceed unimpeded. The second and related obstacle is what we have previously referred to as the Five Horsemen of the Apocalypse: judicial misapplication of the doctrines of wide latitude, curative charges, appellate preservation, and harmless error, combined with the crushing pandemic backlog, which permit this intentional misconduct to flourish and become commonplace. See, The Snake Attack Phenomenon, supra. These two obstacles are closely related, as the failure by defense counsel to either pre-emptively or contemporaneously object (and to seek a mistrial in response) to improper anchoring tactics guarantees that courts will reject post-trial challenges as unpreserved or having been cured by the standard jury charge that attorney comments are not evidence. Thus, the long-favored passive approach must be discarded in favor of the proactive and multi-faceted opposition detailed above.
For additional excellent resources on the topic of anchoring, please see: Mark A. Behrens, Cary Silverman, Christopher E. Appel, Summation Anchoring: Is it Time to Cast Away Inflated Requests for Noneconomic Damages?, American Journal of Trial Advocacy [Vol. 4-321, pp. 321-338] (2021); Nicholas Rauch, Counter Anchoring and the Reverse Reptile, DRI For the Defense, 63 No. 1 DRI For Def. 22 (January 2021).
Initially published in the NYLJ