Texas Courts’ Recent Focus on Unsubstantiated Anchoring. Â
Texas courts have recently provided guidance on what constitutes improper jury argument, focusing specifically on unsubstantiated anchoring. Trial counsel routinely use strategies to enhance the persuasiveness of their presentations and arguments in jury trials, and “anchoring†is a technique designed to influence jurors’ evaluation of a plaintiff’s noneconomic damages. It involves mentioning a number or value that the jury can use as a reference point when determining the actual amount of a plaintiff’s damages.
Attempts to set anchors at trial may begin as early as voir dire and are most commonly used during closing argument. Plaintiffs’ counsel ordinarily seek to establish high anchors, while defense counsel may choose to set anchors of their own with low numbers. But there are limits. Texas Rule of Civil Procedure 269(e) provides that “[c]ounsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel,†and “unsubstantiated anchoring†occurs when trial counsel references values or things that have no rational connection to the case.
