Posted by Eugene Volokh:
Anchoring Effects and the Law:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248466654
"[1]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
[2]Biegas v. Quickway Carriers (6th Cir.) seems to me about anchoring
effects, though it doesn't discuss the issue in those terms.
Dailey is driving his truck. Biegas is on the side of the road, and
gets run over. The judge concludes 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 instructs the jury that �in �prior
proceedings� it had �already been determined that Dailey ... 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 concludes that Dailey is 47% negligent and Begas is 53%
negligent. On appeal, the court concludes that the trial judge was
wrong to hold that Begas was necessarily more negligent than Dailey.
Question: Is this error harmless, because the jury concluded that
Begas was indeed 53% negligent?
The majority says no (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 disagrees:
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.
References
1. http://www.sciencedaily.com/articles/a/anchoring.htm
2. http://www.ca6.uscourts.gov/opinions.pdf/09a0263p-06.pdf
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