Navigating New Legal Landscapes: Georgia’s Tort Reform Proposal On Attorney Anchoring

In a groundbreaking move for Georgia’s legal system, Governor Brian Kemp has introduced a comprehensive tort reform package that includes a notable proposal to ban the practice of “anchoring” by attorneys during closing arguments. This reform aims to reshape how civil litigation is conducted in the state, potentially affecting everything from jury verdicts to insurance rates and business operations. Let’s delve into what this means, why it matters, and the implications for Georgia’s legal community and its citizens.

What is Anchoring In Legal Terms?

Anchoring in the context of an attorney’s closing argument refers to a psychological and rhetorical strategy where the attorney attempts to influence the jury’s perception or decision-making by establishing a reference point (or “anchor”) that frames the jury’s judgment. This technique leverages the cognitive bias known as anchoring bias, where people tend to rely heavily on the first piece of information they encounter (the anchor) when making decisions, even if that information is irrelevant or biased.

In closing arguments, attorneys use anchoring to shape how jurors evaluate evidence, damages, or guilt by introducing specific numbers, ideas, or narratives that serve as mental benchmarks. Below, I’ll explain how anchoring is commonly used, its ethical considerations, and examples in legal contexts.

How Anchoring Works In Closing Arguments

Establishing A Reference Point:

The attorney introduces a specific figure, concept, or narrative early in the closing argument to set a baseline for the jury’s thinking.

For example, in a personal injury case, the plaintiff’s attorney might suggest a high dollar amount for damages (e.g., “$10 million for pain and suffering”) to anchor the jury to a large number. Even if jurors later adjust downward, their final award may still be higher than if no anchor had been provided.

Framing The Narrative:

Anchoring isn’t limited to numbers; it can also involve framing the case in a way that biases the jury’s interpretation of evidence.

For example, a defense attorney might anchor the jury to the idea that the plaintiff “exaggerated their injuries” by repeatedly emphasizing inconsistencies in their testimony. This frames the plaintiff’s credibility as suspect, influencing how jurors evaluate the evidence.

Repetition And Emphasis:

Attorneys often repeat the anchor throughout the closing argument to reinforce its impact. The more the jury hears the anchor, the more likely they are to internalize it.

Contrast With Opposing Counsel:

Attorneys may also use anchoring to counter the opposing side’s arguments. For example, if the defense suggests a low damage award, the plaintiff’s attorney might anchor to a much higher figure and argue that the defense’s number is “unreasonably low” in comparison.

Examples Of Anchoring In Closing Arguments

Anchoring is a common rhetorical method that is used in civil and criminal attorneys by the plaintiff, prosecution and the defense. What sense does it make to ban anchoring in only one area of litigation and only for one side and not both sides.

Civil Cases (Damages):

In a wrongful death lawsuit, the plaintiff’s attorney might say, “How do you put a price on the loss of a loved one? Studies show that juries in similar cases have awarded $15 million for pain and suffering. This is a starting point for your consideration.”

This anchors the jury to the $15 million figure, even if it’s not directly tied to the case at hand.

Criminal Cases (Guilt Or Sentencing):

In a criminal trial, a prosecutor might anchor the jury to the severity of the crime by saying, “The defendant committed a heinous act that left the victim traumatized for life. This isn’t a minor offense it’s a crime that deserves the maximum penalty.”

This anchors the jury to the idea of maximum punishment, influencing their deliberations.

Comparative Anchoring:

In a medical malpractice case, the defense attorney might say, “The plaintiff is asking for $5 million, but expert testimony shows that similar cases typically settle for $500,000. Their demand is outrageous.” This anchors the jury to the lower figure and frames the plaintiff’s request as unreasonable.

Psychological Basis Of Anchoring

Anchoring works because of the way human brains process information:

• Primacy Effect: Jurors are more likely to remember and be influenced by the first numbers or ideas they hear.
• Adjustment Bias: Even if jurors recognize that the anchor is extreme, they often adjust insufficiently from that starting point.
• Confirmation Bias: Once an anchor is set, jurors may subconsciously seek evidence that supports it and discount evidence that contradicts it.

Ethical And Legal Considerations

While anchoring is a common and often effective strategy, it must be used carefully to avoid ethical violations or judicial intervention:

Misleading The Jury:

Attorneys must not present false or unsupported anchors. For example, citing a specific damage award from another case as “evidence” could be misleading if the cases are not comparable.

Ethical rules, such as those in the *ABA Model Rules of Professional Conduct*, prohibit attorneys from making false or misleading statements.

Judicial Oversight:

Judges may intervene already if an attorney uses an improper anchor, such as referencing inadmissible evidence or making inflammatory statements.

For example, if an attorney anchors the jury to a damage amount that has no basis in evidence, the opposing counsel may object, and the judge may instruct the jury to disregard the statement.

Manipulation Vs. Advocacy:

Attorneys are allowed to advocate persuasively for their clients, but they must balance this with their duty to avoid manipulating the jury unfairly. Some jurisdictions have specific rules about what can be said during closing arguments, such as prohibiting appeals to emotion that lack a factual basis.

Countering Anchoring

Opposing counsel can mitigate the effects of anchoring by:

Preempting The Anchor:

Address potential anchors during their own closing argument. For example, “The defense may suggest a low award, but remember that their number is arbitrary and doesn’t reflect the true harm suffered.”

Reframing The Narrative:

Challenge the anchor by providing a counter-anchor or reframing the issue. For example, “The plaintiff’s $10 million demand is excessive. Let’s focus on the evidence, which supports a fair award of $1 million.”

Highlighting Bias:

Point out that the anchor is manipulative. For example, “The prosecution wants you to focus on emotion, not evidence. Their ‘maximum penalty’ rhetoric is designed to distract you from the lack of proof.”

Details Of The Proposal

Under Governor Kemp’s tort reform initiative, as detailed in Senate Bill 68, attorneys would be explicitly prohibited from arguing the worth or monetary value of non-economic damages to the jury or prospective jurors. This includes not only direct statements but also any reference or elicitation of testimony regarding a specific amount or range of amounts for non-economic damages. If breached, the court would be required to take remedial action to counteract the influence of such statements.

Why Ban Anchoring?

Proponents of this reform argue that:

• Fairness In Judgments: By removing the possibility of anchoring, the reform seeks to ensure that jury decisions are based on the evidence presented rather than on potentially inflated or suggested figures, fostering a more equitable legal environment for large corporations and insurance companies. What about consumers and injured individuals? When big corporations win they just push the financial responsibility from corporations to taxpayers in the form of social security disability and medicaid payments.
• Reduction In Insurance Costs: Large, unpredictable jury awards can lead to increased insurance premiums. By curbing anchoring, the hope is that insurance companies will not factor in these extraordinary verdicts when setting rates, potentially stabilizing costs for both businesses and consumers. The reality is that insurance rates reflect climate change related weather events, electric vehicle repairs and poor investment returns in the bond and low volatility stock markets from insurance float or the difference between premiums earned and insurance claims paid.
• Economic Impact: Georgia has been labeled a “judicial hellhole” by some due to perceived excesses in its civil litigation system. Reforms like this one aim to make the state more attractive to businesses, promising a more predictable legal climate. The reality is that in 2022 (the last year of a nationwide rankings at topverdict.com) Georgia had only two verdicts in the top 100. One was a sexual assault a children’s day care and the other was a delay birth brain injury medical malpractice claim. Most of the top 100 verdicts were from Florida, New York, California and Texas.

Controversies And Criticisms

However, the proposal does not come without its critics:

• Attorneys’ Advocacy: Many trial lawyers argue that anchoring, when used appropriately, is a legitimate part of advocacy, allowing them to help juries understand the scale of damages in a case. They contend that this ban might hinder their ability to effectively represent their clients.
• Jury Independence: There’s a debate about whether such a ban truly empowers jurors or if it might instead limit their access to information that could help them make informed decisions about non-economic damages.
• Impact On Victims: Opponents fear that without the ability to anchor damages, victims might not receive fair compensation for intangible losses like pain, suffering, or loss of companionship, especially in severe cases.

Legal and Practical Implications

• Courtroom Dynamics: This reform would necessitate a shift in how attorneys present their closing arguments, focusing more on qualitative aspects rather than quantitative, potentially leading to a new style of legal advocacy.
• Judicial Oversight: Judges will have an increased role in monitoring and correcting any violations of this new rule, possibly leading to more objections and sidebars during trials.
• Public Perception: The reform could influence how the public views the fairness and integrity of Georgia’s legal system, potentially affecting trust in jury verdicts.

Looking Ahead

As this legislation moves through the Georgia General Assembly, stakeholders from various sectors business leaders, insurance companies, legal professionals, and consumer advocacy groups will be watching closely. The debate will likely center on balancing the rights of individuals to seek fair compensation with the need for a legal system that supports economic growth and fairness for all parties involved in litigation.

Conclusion

Governor Kemp’s proposal to ban anchoring in closing arguments is just one aspect of a broader tort reform package, but it’s a significant one. If enacted, it could mark a pivotal change in how civil cases are argued and adjudicated in Georgia, aiming for a legal environment where jurors are trusted less and are prevented from considering information that could help them reach a fair verdict. As discussions evolve, one thing is clear: Georgia’s legal landscape is on the cusp of transformation, with potential long-term impacts on both the state’s legal practices and its economy.

Stay tuned to this space as we continue to cover developments in Georgia’s tort reform saga, examining how these changes could reshape the state’s approach to civil justice.