Anchoring is the concept of tying one’s ship to a mooring to keep it from drifting into the open seas. In the late 1970’s Kahneman and Tversky determined that people can unconsciously tie opinions to unrelated moorings which keep them within a constrained area.
Anchoring may be found in all aspects of decision making. And many academics have determined that juries anchor their opinions to potentially unrelated aspects of a matter. For example, in Uniloc USA v. Microsoft, the court notes that “the ‘$19 billion cat was never put back into the bag,'” suggesting that once a jury hears a large number, its opinion regarding damages can be anchored to that number. This appears to be the number one reason why the entire market value rule (EMV) and the smallest saleable practicing unit (SSPU) have become so important in damages.
In his recent opinion, Judge Alsup appears to conclude that the trade secret’s damages expert in the Waymo matter was in danger of anchoring the jury with a large value:
In short, anchoring issues appear to have reached the trade secret realm.