ABSTRACT
This Article introduces a novel litigation strategy plaintiffs’ attorneys use that inverts conventional practices: Unanchoring. Unanchoring takes two forms: (1) economic unanchoring, which suppresses the submission of economic damages to juries, and (2) plaintiff unanchoring, which shifts juries’ attention away from a defendant’s damage to the plaintiff and toward the defendant’s danger to society—and thus potentially the jury itself. Both strategies seek to boost damages awarded by juries.
The Article empirically demonstrates the existence of unanchoring by constructing two separate datasets. The first data set uses natural language processing (NLP) tools to analyze over 1,000 jury instructions in Illinois and Florida. While virtually no jury instructions revealed economic unanchoring in 2005, between 15% and 20% of documents analyzed since 2020 asked for pain and suffering damages without mentioning economic damages. NLP analysis of this data on every damage category confirms this is a general trend. This Article creates its second dataset by extracting every motion in limine containing the Reptile theory (a version of plaintiff unanchoring) on Trellis, a state court data provider that contains a myriad of trial court information. This dataset covers over two thousand cases and over ten thousand attorneys. This data tells three stories: (1) that the Reptile has been used in every region in the nation; (2) that thousands of attorneys nationwide have adopted Reptile tactics in litigation; and (3) that the Reptile is increasingly popular.
The Article concludes by asking and answering the normative question of whether Unanchoring is desirable. To answer this question, it first scrutinizes the strategy’s fundamental flaw: Unanchoring exacerbates principal-agent problems and likely leads to adverse selection in plaintiffs’ attorneys’ strategy for their clients. After discussing why traditional solutions, such as contracting or public policy, are unavailing, the Article offers litigation finance as the solution. Solving the plaintiff-attorney problem allows the Article to analyze the overall welfare implications of unanchoring. Because unanchoring attacks a juror’s perception of damages when the plaintiff is economically disadvantaged, the strategy increases the average case quality in the system. Furthermore, unanchoring disproportionately delivers benefits to the economically disadvantaged. There are still costs to unanchoring, such as raising the costs of industries associated with repeat defendants.
Vojta, George, Unanchoring (October 25, 2024).
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