Saliency, Anchors & Frames: A Multicomponent Damages Experiment

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages awards has been understudied. Relying on decision-making concepts from other contexts, we hypothesize that two biases, namely, a saliency bias and anchoring, may be at work in a patent trial. Since the infringing feature is the most salient feature in a patent trial (i.e. the focus of the trial), jurors may tend to overvalue that feature. Moreover, a patentee’s irrationally high damages demand may “anchor” the juries to that number. We conducted an online 3x3x2 between-subjects experiment to test whether these biases exist and if so, whether particular debiasing techniques may reduce these biases. In eighteen different scenarios, mock jurors were asked to assess damages for different smartphone features. The three manipulations involved: 1) rotating three features so that they were either the feature underlying the plaintiffs’ claim (the “feature-in-suit”) or one of the other features defendant identified as contributing to the smartphone’s overall value; 2) changing the jury verdict form so that mock jurors had to evaluate both the feature-in-suit and other features together; and 3) having the defendant explicitly call out the plaintiff for anchoring the jury in an irrationally high number. The results suggest that some combination of the saliency bias and anchoring were at play when juries assessed damages for all three tested features. However, for the storage feature the results were only significant for the feature’s relative rank, but not its dollar valuation. That may be because mock jurors are familiar with the cost of the increased storage. Modifying the jury verdict form reduced, but did not eliminate, the primary effect of the saliency bias, while the defendant’s tactic of exposing the plaintiffs’ anchor did not significantly reduce damages. In addition, qualitative comments suggested that some mock jurors resisted the jury instructions designed to compensate plaintiffs for the missing feature and instead assessed damages to punish the defendant.

Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal

One of the main criticisms of the Criminal Division of the Court of Appeal has been that it is deficient at identifying and correcting the wrongful convictions of the factually innocent. These criticisms stem from the court’s perceived difficulties in relation to appeals based on factual error. The main ground of appeal for errors of fact is fresh evidence, and these appeals are particularly problematic because they require the court to trespass on the role of the jury somewhat in assessing new evidence on appeal against the evidence at trial in order to determine whether the conviction is unsafe. The broad consensus is that the court’s difficulties are caused by three main issues: its deference to the jury verdict; its reverence for the principle of finality; and a lack of resources to deal with huge numbers appealing. There is less agreement in identifying the source of the problems because it is not clear whether they derive from legislative powers or the interpretation of those powers by the judiciary. This article uses both qualitative and quantitative empirical research in order to try to determine what the court’s approach is in fresh evidence appeals and, if there are problems, whether it is the law or the interpretation of the law by the judiciary which is to blame. It also proposes reforms designed to make it easier for the court to rectify miscarriages of justice.

Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority

In its August 2016 decision in Waldman v. Palestine Liberation Organization, the U.S. Court of Appeals for the Second Circuit reversed a $655 million jury verdict against the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for lack of personal jurisdiction. The plaintiffs were individuals whose family members had been killed in terrorist attacks that took place in Jerusalem; defendants were alleged to have coordinated and carried out these attacks. While the United States government took no position on the merits of the dispute, it filed a Statement of Interest in the district court “[o]n the limited issue of setting a bond amount in [the] case.”