The Volokh Conspiracy - Anchoring Effects and the Law:

"Anchoring or focalism is a term used in psychology to describe the common human tendency to rely too heavily, or 'anchor,' on one trait or piece of information when making decisions." A big chunk of today's Biegas v. Quickway Carriers (6th Cir.) seems to me about anchoring effects, though it doesn't discuss the issue in those terms.

Dailey was driving his truck. Biegas was on the side of the road, and got run over. The judge concluded on partial summary judgment that, as a matter of law, Biegas was more negligent than Dailey. (This is important because state law "bars non-economic damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault.") The judge then instructed the jury that "in 'prior proceedings' it had 'already been determined that Begas ... is more than 50 percent at fault' and that the jury's job was 'to determine how much fault from more than 50 percent to 100 percent can be attributed to the negligence of Begas, and how much fault from zero percent to 50 percent can be attributed to the negligence of Dailey.'"

The jury concluded that Dailey is 47% negligent and Begas is 53% negligent. On appeal, the Sixth Circuit concluded that the trial judge was wrong to hold that Begas was necessarily more negligent than Dailey. This left the question: Was this error harmless, because the jury concluded that Begas was indeed 53% negligent?

The majority said that the error was not harmless (paragraph breaks added):

We believe, however, that a properly instructed jury could have weighed the evidence of negligence by Biegas and Dailey differently and allocated fifty percent or less of the fault to Biegas. Although it is impossible to know what effect the erroneous instructions had on the jury's allocation of fault, we think it likely that the instructions affected the jury's entire analytical framework as it weighed and compared the evidence of negligent conduct by Biegas and Dailey.

Having been instructed by the district court that "prior proceedings" had determined Biegas to be more at fault than Dailey, the jury may well have given greater weight to the evidence of Biegas's negligent conduct and less weight to that of Dailey. The erroneous instruction may have given the jury the impression that the district court had doubts about the strength of the Estate's evidence or that the district court had some other undisclosed reason for tipping the comparative fault scale against Biegas from the start.

A properly instructed jury, told nothing about the relative fault of the parties and free to assess Biegas's fault on a scale of 0% to 100% rather than 51% to 100%, could have weighed the evidence differently, splitting the fault equally or even allocating less of the relative fault to Biegas. Because the erroneous jury instructions could have affected the result of the jury's deliberations, we conclude that the error affected the Estate's substantial rights and was not harmless. Accordingly, a new trial is required so that the Estate may present its case to a properly instructed jury.

The dissent disagreed:

If the jury had found that Biegas' degree of fault was 51 percent, I would agree that the error in giving the limiting instruction was not harmless. For in that situation the jury's verdict could have equally well rested on either of two inconsistent theories. It could have reflected the jury's independent judgment that Biegas was in fact 51 percent responsible for the accident. Or it could have reflected the jury's conclusion that although it believed Biegas' fault was less than 51 percent, the court's instruction required it to set his fault at that level. In the latter situation, it could not be said that without the limiting instructions the jury likely would have concluded that Biegas' level of fault was less than 51 percent.

In the present case, however, the jury's verdict that Biegas' fault was 53 percent necessarily reflected the jury's independent determination that his fault exceeded the 51 percent minimum it was required to apply. In that circumstance, I cannot say that there was any realistic likelihood that, without the limiting percent instruction, the jury would have assessed Biegas' fault level at less than 51 percent. The court's contrary conclusion — resting upon statements that the jury "could have" weighed the evidence of comparative negligence differently, "may well have" or "could have" evaluated the evidence differently — is speculation and is insufficient to justify the conclusion that any error in the instruction was prejudicial.

We cannot say precisely what the jury would have done without the limiting instruction. We deal, however, with possibility, probability, and likelihood, not certainty. In the circumstances here I think the likelihood that without the limiting instruction the jury could or would have set Biegas' fault at less than 51 percent is too slim to warrant concluding that the erroneous limiting instruction was not harmless.

I think the majority is right, but in any case it strikes me like a very interesting discussion.

	[Eugene Volokh, July 24, 2009 at 4:17pm] Trackbacks Anchoring Effects and the Law: "Anchoring or focalism is a term used in psychology to describe the common human tendency to rely too heavily, or 'anchor,' on one trait or piece of information when making decisions." A big chunk of today's Biegas v. Quickway Carriers (6th Cir.) seems to me about anchoring effects, though it doesn't discuss the issue in those terms. Dailey was driving his truck. Biegas was on the side of the road, and got run over. The judge concluded on partial summary judgment that, as a matter of law, Biegas was more negligent than Dailey. (This is important because state law "bars non-economic damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault.") The judge then instructed the jury that "in 'prior proceedings' it had 'already been determined that Begas ... is more than 50 percent at fault' and that the jury's job was 'to determine how much fault from more than 50 percent to 100 percent can be attributed to the negligence of Begas, and how much fault from zero percent to 50 percent can be attributed to the negligence of Dailey.'" The jury concluded that Dailey is 47% negligent and Begas is 53% negligent. On appeal, the Sixth Circuit concluded that the trial judge was wrong to hold that Begas was necessarily more negligent than Dailey. This left the question: Was this error harmless, because the jury concluded that Begas was indeed 53% negligent? The majority said that the error was not harmless (paragraph breaks added): We believe, however, that a properly instructed jury could have weighed the evidence of negligence by Biegas and Dailey differently and allocated fifty percent or less of the fault to Biegas. Although it is impossible to know what effect the erroneous instructions had on the jury's allocation of fault, we think it likely that the instructions affected the jury's entire analytical framework as it weighed and compared the evidence of negligent conduct by Biegas and Dailey. Having been instructed by the district court that "prior proceedings" had determined Biegas to be more at fault than Dailey, the jury may well have given greater weight to the evidence of Biegas's negligent conduct and less weight to that of Dailey. The erroneous instruction may have given the jury the impression that the district court had doubts about the strength of the Estate's evidence or that the district court had some other undisclosed reason for tipping the comparative fault scale against Biegas from the start. A properly instructed jury, told nothing about the relative fault of the parties and free to assess Biegas's fault on a scale of 0% to 100% rather than 51% to 100%, could have weighed the evidence differently, splitting the fault equally or even allocating less of the relative fault to Biegas. Because the erroneous jury instructions could have affected the result of the jury's deliberations, we conclude that the error affected the Estate's substantial rights and was not harmless. Accordingly, a new trial is required so that the Estate may present its case to a properly instructed jury. The dissent disagreed: If the jury had found that Biegas' degree of fault was 51 percent, I would agree that the error in giving the limiting instruction was not harmless. For in that situation the jury's verdict could have equally well rested on either of two inconsistent theories. It could have reflected the jury's independent judgment that Biegas was in fact 51 percent responsible for the accident. Or it could have reflected the jury's conclusion that although it believed Biegas' fault was less than 51 percent, the court's instruction required it to set his fault at that level. In the latter situation, it could not be said that without the limiting instructions the jury likely would have concluded that Biegas' level of fault was less than 51 percent. In the present case, however, the jury's verdict that Biegas' fault was 53 percent necessarily reflected the jury's independent determination that his fault exceeded the 51 percent minimum it was required to apply. In that circumstance, I cannot say that there was any realistic likelihood that, without the limiting percent instruction, the jury would have assessed Biegas' fault level at less than 51 percent. The court's contrary conclusion — resting upon statements that the jury "could have" weighed the evidence of comparative negligence differently, "may well have" or "could have" evaluated the evidence differently — is speculation and is insufficient to justify the conclusion that any error in the instruction was prejudicial. We cannot say precisely what the jury would have done without the limiting instruction. We deal, however, with possibility, probability, and likelihood, not certainty. In the circumstances here I think the likelihood that without the limiting instruction the jury could or would have set Biegas' fault at less than 51 percent is too slim to warrant concluding that the erroneous limiting instruction was not harmless. I think the majority is right, but in any case it strikes me like a very interesting discussion.