It has become common lore that a civil defendant can reduce damages from what they otherwise would have been by offering jurors a “low anchor” in the form of an alternate number. A Carrier Management article by Susanne Sclafane relates the advice, also supported by research and practical experience: 

Jurors are responsive to reasonable, fact-based suggestions, especially when presented to them before plaintiff narratives take hold. Equipping trial teams with empirically grounded anchor points could reduce loss severity by millions in high-stakes cases.

But as beneficial as a lower anchor may be, it is not always a simple matter to develop and present one. In addition to wanting to avoid the perils of an implied concession in making that “offer” (a subject for another post), there is also the critical question of where the number comes from. 

I believe there are two approaches to avoid, and one approach to embrace, when defendants consider that number. 

Avoid the Random Number 

I think a reasonable number for pain and suffering would be $500,000.

The question on jurors' minds will be, “Why?” and “Where does that number come from?” Without an explanation, jurors will surmise—perhaps correctly—that the only purpose of the number is to reduce the overall amount that a defendant has to pay. 

Avoid the Plaintiff-Anchored Number 

The plaintiff says this disfigurement is worth ten million. If that seems unreasonably high, perhaps you should consider a quarter of that—two and a half million is still a lot. 

The reason a plaintiff offers a big number is to get jurors to anchor off of that number. When defense counsel also anchors off the plaintiff's number, that only reinforces it and tells jurors that it is a good starting point.

Embrace the Meaningful Alternate-Process Number 

So how do you get to a meaningful number for pain and suffering? We understand it is difficult without a concrete reference point, and proving up these damages is the plaintiff's burden. But take a look at the revised numbers we just went through for medical expenses. These are actual costs, spending that you can put a receipt on. That might be a useful starting point, if you ask, ‘is the pain worth the same as the medical treatment? Half as much? One and a half times as much?’ We understand that is still an uncertain way to go about it, but it is probably better than just grabbing a number out of thin air. 

Of course, what the process is will depend on the specifics of the case. But a defendant who pays attention, not just to what jurors should award if they get to that point, but to how they would reasonably get there, is going to have more control over the damages results.