Jury Bias And Big Numbers In Patent Litigation

Law360, New York (February 26, 2015, 11:47 AM EST) -- Litigators are familiar with the issue of potential jury bias in all of its many forms. One of those is the potential for what are known as cognitive biases, which refers to recurring (and unconscious) deviations away from a strictly logical or objective decision. Two common forms of these biases are "anchoring," referring to the tendency of a reference point to carry undue weight in subsequent decisions, and "framing," which refers to the ability of different presentations of the same information to elicit different outcomes. These biases could potentially be found in cases where the defendant is a major corporation versus a small family-owned company, or a wealthy individual versus a person of modest means. The biases in these cases refer to the potential for juries to award higher damages when defendants are perceived to have greater resources, even when the facts (and liability) of the cases are the same. When those potential biases impact juries' decisions on damages in addition to liability, defendants may find themselves doubly harmed....

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