Michael Cowen

36 – David Ball – Finding the Alignment – Understanding What Jurors Want

In this episode of Trial Lawyer Nation, Michael Cowen sits down with a special guest, Dr. David Ball. David is a trial consultant, speaker, and one of the “fathers” of the book “The Reptile in the MIST.” His name and his books have been mentioned on numerous episodes not only Michael Cowen, but many of our Trial Lawyer Nation guests. With several books of David’s to choose from, Michael can’t help but note how “David Ball on Damages 3” has been very useful in helping him craft opening statements and serving as an outline for many trials. He also highly recommends all trial lawyers have this book within arms-reach of their desk (more on this later in the episode). And for those trial lawyers who don’t know David personally, it is important to also note he has probably done more good for trial lawyers than anyone else in the industry.

Having started down his path many years ago, David’s mission of trying to help trial attorneys make complicated things clear, originally came from his background in theatre, where much of what he had learned in theatre has been extremely useful for trial lawyers. In fact, working with a more classical repertoire theatre with works from Shakespeare, he wondered how he could make those plays crystal clear for the audience who is listening to it and how it might relate to the legal industry. His conclusion? “I realized lawyers have 2 problems: 1. They’re boring as hell and 2. They’re not very clear about what they’re talking about.” Today David describes what he does as helping to strategize cases to maximize the principles of what we’ve learned in the neurosciences and apply it to how people really make conclusions, how decisions are made, how we know things, and how logic has very little to do with any of it. Essentially, working as a bridge between the neurosciences and the courtroom.

So, how do we get jurors to see things the way we want them to? Logic doesn’t deal with the law school version of tell them your case, they’ll understand your case, and if you’re in the right, they’ll give your client a just verdict. Justice has nothing to do with how people make decisions. How do we translate that into things you’re allowed to do in trial and in a way that will motivate jurors to do what we want them to do? David says, people don’t make their decisions on the basis of “justice,” but rather justice is simply the result of something you think you want. He goes on to explain why trial lawyers need to look at what they’ve got and then put this “stew” together into something someone REALLY wants, for it to end the way we want it to. The whole process of trial, as David describes it, is an alignment.

David continues to describe this alignment by combining solid research along with all the things he’s learned in theatre about what real storytelling is. The fundamental thing about The Reptile, he describes, is by getting the jurors to want themselves to be safe and live in a safe world, that becomes their want. He also points out that in order to get their want, he also needs to get his client’s “want,” which is money. Michael adds to this by stating the only power the jury has in the courtroom is to give or deny money in the case. David goes on to say that if the attorney is presenting their case well, jurors will understand if they give a good verdict it will make their world safer, but also giving a bad verdict will make their world a more dangerous place than it is now. In other words, once the jurors walk into the courtroom, they will be walking out with either a safer world or a more dangerous world, but it will never be the same way as when they walked in. Furthermore, David explains when you ask a client why they are doing the case, not only will they say it’s because they need the money (compensation) but they also want to make sure this won’t happen to anyone else. To expand on his point, David shares an example from his early years watching the trial of a case involving a wealthy woman in North Carolina, who was rear-ended and clearly didn’t need the compensation from the case. The answer the woman gave him when he asked her why she was going through with the case, even though it was painful, is priceless. And it helps us understand why even the smallest cases are important in making the world a safer place. David also talks about the points he describes to the jurors regarding their potential complicities in what they allow the defense to get away with and the affects it will have on others who face the same situations in the future.

Which leads Michael to pose the question, “how do we figure out what the jurors want?” David goes through a laundry list of things we know about what jurors want, including through focus groups and the neurosciences what motivates us to want something. Boiled down to its core, David explains this with a great example of teenage boys as jurors, which will shock you and make complete sense. And he wraps up with describing the fundamental drives that keep us alive, as well as the impact of disrespect and humiliation.

The topic shifts at one point to talk about when the other side brings in what they call an “independent medical examiner,” three lies in one person’s title, David jokes (sort of). Rather than disagreeing with their conclusion, David proposes you show what they did wrong in their methodology, to show they purposely arrived at the wrong conclusion. He goes on to show how the right types of questions posed to your own experts can further point out the flaws in their conclusions without the need to call the defense’s independent expert a liar. Michael also adds how it can be very effective to discuss the idea of a defense’s witness as “independent,” when they’ve been picked and paid for by the defense, in helping the jury not feel like their intelligence is being disrespected. David continues to talk about the difference between describing the defense as someone who may lie in order to protect themselves vs. someone who is disrespecting the jury by insulting their intelligence and the impact this can have on a jury. He goes on to point out how it is analogous to the difference between a doctor lying to a patient, where the patient might be being disrespected but the juror is not vs. a doctor getting on the witness stand and deliberately misleads the jury, and as such, disrespecting them.

One of the things David describes as loving about what he’s been able to do, is when he started writing his first theatre for trial book, there was nothing. Nobody was doing anything in the way of teaching major overall strategy and there were certainly no books on damages or doing it. He’d like to think that the Damages book helped give rise to this whole other industry. In one hand he should hate it, he created all his own competitors, and on the other hand it is the greatest feeling in the world for him.

David also suggests for every attorney to page through their Damages 3 book on a consistent basis to examine it through the lens of the case you’re working on currently, in order to see things you never saw before. He suggests this, mainly because so much information is lost after seminars and reading other books, because the only things you likely retain are the things which pertain to the case you’re working on right now.

Michael and David move on to the topic of the principles of persuasion and how David has brought his theatre experience into the courtroom. Revisiting the idea of “real storytelling,” David talks through the actual history of storytelling and how it has evolved over time. He points out why you have to make people want to hear the next part of the story, AKA “narrative thrust,” using “dramatic tension” to create tension between this moment and the next moment, and the next moment could be an hour away or two minutes away. Crafting what David describes as “forwards” where everyone sees the anticipated moment in the story and wants to hear it for themselves. He also points out these forwards are very case specific, very particular to the story, and it is a relatively sophisticated thing to do for people who are not natural born storytellers, but you can learn to do it. And he describes why the context in storytelling and where you put pieces of information in the story matter significantly to shaping the story.

Michael and David touch briefly on social media and a trial lawyer’s first amendment right, where it is important to note David believes if you are a trial lawyer, you have accepted a fiduciary responsibility to your client which trumps your ability to have free speech. He also believes society has become so divisive these days on social media and now face to face, where we now have the challenge of bringing both sides together to fight for an even greater cause. David uses the example of 2 people fighting, but when someone comes in and tries to do harm to them, they will both unite because they are both in danger and need each other to save themselves. The heart of such a scenario, is the aim of every trial lawyer when working with diverse juries.

Digging deeper into David’s theatre background, Michael talks about how he has yet to see a trial lawyer facing a potentially multi-million-dollar trial rehearse as much as a community theatre where 30 people may be in the audience. David shares how being a trial lawyer is the only area of public performance where they don’t rehearse. He goes on to suggest you cannot fully rehearse on your own and, a full rehearsal, means a dress rehearsal. In the same way you cannot have football practice without eventually having a scrimmage with another side. When you are on the stage, you have a million other things on your mind, you’re being “Hamlet.” When you’re a lawyer, you’ve got your peers, the judge, and the jury all watching you. It distracts your attention from where it needs to be, so you seem very nervous. You cannot be a leader of human beings when you’re very nervous. And the best lawyers are leaders of human beings.

The conversation ends with a discussion on charisma in the courtroom as well as David’s important work in the criminal defense industry. And after spending this episode with David, it’s clear to see why so many trial lawyers look to him as a powerhouse in the industry.

 

BACKGROUND

David Ball, who wrote trial advocacy’s best-selling strategy bookDavid Ball on Damagesis a litigation researcher and strategist with North Carolina’s Malekpour & Ball Consulting (JuryWatch, Inc.). He is the nation’s most influential jury consultant, communications expert, and advocacy teacher. His training is in science, engineering, and small-group communications, and he is a 30-year veteran of the professional theater.

Dr. Ball and his partner, lawyer/consultant Artemis Malekpour (artemis@consultmmb.com), consult on civil and criminal cases across the country. They are routinely credited with turning the most difficult cases into significant victories. They are the nation’s only trial consultants qualified to safely and comprehensively guide attorneys with Reptilian, David Ball on Damages, and David Ball on Criminal Defense methods and strategy. Their hundreds of brainstorming sessions – “WorkDays” – have become the gold standard for case-strategy development.

In addition to David Ball on Damages, Dr. Ball’s other landmark advocacy books include Theater Tips & Strategies for Jury Trials, Reptile (with Don Keenan), Theater for Trial (with Joshua Karton), Reptile in the MIST, and David Ball on Criminal Defense.

Dr. Ball has taught law students at North Carolina, Wake Forest, Pittsburgh, Minnesota, Roger

Williams, Loyola, and Campbell schools of law, and at Duke Law as Senior Lecturer. He’s an award-winning teacher for the North Carolina Advocates for Justice and the American Association for Justice’s National College of Advocacy. He has long been among the nation’s most in-demand of CLE speakers. His favorite job was taxi driver in the 1970s in Stamford, CT, and his Daddy was a Catskill Mountains bootlegger during Prohibition.

 

Dr. Ball is also a pioneer in adapting film and theater methods into trial techniques. His theater/film students have won Oscars, Obies, Tonies, and Emmies; his scripts have been staged at professional theaters off-Broadway, throughout North America, and overseas. He helped to lead the Guthrie Theater, as well as Carnegie-Mellon University’s renowned theater conservatory and, as Chair, Duke University’s Drama Department. His best-selling film and theater training book, Backwards and Forwards, has been the field’s standard every year since 1984, and is now in uses by trail lawyers as well. His crossover books, Theater Tips and Strategies for Jury Trials along with the new Theater for Trial, are the standards for the use of film and theater techniques in litigation.

Dr. Ball also wrote the cult classic film Hard Rock Zombies, though he made up for it by writing Swamp Outlaw, a novel about Civil War Era Lumbee hero Henry Berry Lowery, now under option for a motion picture. (TV viewers: Dr. Ball and Dr. Bull deny each other’s existence.)

 

RESOURCES

Reptile: The 2009 Manual of the Plaintiff’s Revolution
https://www.amazon.com/Reptile-2009-Manual-Plaintiffs-Revolution/dp/0977442551

Reptile: The 2009 Manual of the Plaintiff’s Revolution

Authored by David Ball and Don Keenan
Mentioned by David Ball

35 – R. Rex Parris – Cognitive Science and the Persuasion of Jurors

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In this episode of Trial Lawyer Nation, Michael Cowen sits down an accomplished trial lawyer, speaker, and Mayor of Lancaster, CA, R. Rex Parris, for a conversation revolving around the intersection of cognitive science and the persuasion of jurors. Having acquired his knowledge over the course of his career, Rex has been able to leverage his deep understanding of cognitive science in obtaining dozens of 7, 8, and 9-figure verdicts and settlements, along with a historic and record-breaking $370,000,000 defamation jury verdict.

Michael’s curiosity starts the conversation off by asking Rex what he did do to obtain the skills he’s developed; which Rex breaks down his journey into its simplest form stating he first had to learn it was a “skill.” Many individuals think there are only a certain number of people who are born to be trial lawyers when the reality is they are just skills to be learned. Rex goes as far as to say that anybody who gets through law school has the capacity to learn those skills and do a magnificent job in the courtroom. He shares how he went on to Trial Lawyers College and continued on to attend many CLE seminars, public speaking and voice seminars, and began studying a lot of cognitive science, all of which to learn how people make decisions, how to persuade people, and how to interact and engage people. Michael shares how the more people he meets at the top of the industry, the more he sees the commonality of their constant desire to learn more.

Focusing on the things Rex has learned through his studies of cognitive science, Michael turns his attention to finding out the things most helpful to Rex in the courtroom. As Rex sees it, everything from where he stands, to where he looks, and what he does with his hands and body is important. He goes on to talk about keeping his fear level down by controlling his heartbeat, which he knows he wants to keep between 90-100 bpm in order to stay in “the zone.”   He also knows how to lower his heart rate when it goes over 100 through a technique called “combat breathing” along with taking note of several other observations within the moment, in order to snap back into the present refreshed and ready to go. To that point, Michael shares how when he’s in a trial, he tries to feel the joy of being in trial and let the outcome take care of itself stating “the more I want to win and worry about the outcome, the less I trust the jurors,” which inevitably comes through in your body language or eye contact. Instead, Michael purposely decides he’s going to trust the jurors to do the right thing, and it always seems to work out better.

Rex then discusses his views on utilizing a classic reversal in the courtroom where he describes it as “in every scene of every movie or play there is a reversal of value” (using the example of how Star Wars starts in the desert and in the next scene you’re in the empire) the greater the contrast the better. In the courtroom, Rex talks through how he uses a lottery ticket analogy, where his client holds the “winning ticket” to the super big jackpot and the only thing he needs to claim it is to give up some things. He then proceeds to talk through all the things his client has to give up, stating everything that has been given up as a result of their injury without talking about the things that have been done to his client. The reversal then comes into play at the end, where Rex turns to the jury and asks if any of them want that ticket. They continue to discuss the differences of what a client has gone through and what they’ve lost, and Rex recognizes that most lawyers have been trained to present cases in a pain and suffering context as to what’s been done to their client but, he points out, in most cultures, “bad stuff” doesn’t have a value. Well-being is what equals wealth in America, citing what Steve Jobs would have given for a pancreas that worked. Which is why during the trial, Rex tends to focus on the parts of his client’s well-being which have been taken away. He also notes that juries are also much more inclined to compensate a plaintiff for things that have been taken away or the things they have been denied, rather than the things that have happened to them. Rex also goes so far and will sometimes even tell juries NOT to give his client a dime for the pain and suffering, just compensate his client for what was taken from them. The conversation continues as they talk about how you as a lawyer discover what exactly was taken from your client. Rex takes this well beyond the usual “get to know your client” and shares a technique even Michael is somewhat surprised at, but can’t wait to try. Rex points out, when it comes to relationships, “we’re not nearly as complex as we like to think we are.”

Keeping on the same path, Michael asks Rex how exactly he presents what’s been taken from his clients. Rex discusses why you don’t present it through your client, you present it through their relatives and neighbors in an effort to find the signals of trust for the jury that cuts through the general noise of a trial. He goes on to explain how there is no better way to send those signals of trust than through those who know your client best. As they discuss the topic further, Rex also reveals why he strives not to keep witnesses on the stand too long and tends to use a lot of video depositions to keep the case moving forward. In fact, he surprises Michael by sharing he uses as much video as possible when he goes to trial and his strategy to do so comes from learning “that the shorter the trial the bigger the verdict tends to be.”

Rex also shares some of the techniques and strategies he and his firm have been developing in the last few years based on a conversation he had with Robert Sapolsky, a neuroendocrinologist from Berkley and the author of “Behave – The Biology of Humans at our best and worst.” He later shares his technique for helping the jury value all that has been taken away from his client by relating those things to diamonds, and not just in his closing, but all throughout the trial starting in voir dire.

The conversation shifts to look at how lawyers don’t want their experience to work against them in looking that much better than the other side, as Michael puts it “you don’t want to look like Goliath.” And while Rex used to subscribe to this thinking, he has learned to move past that and focus solely on his credibility in the courtroom when it comes to the jury and being able to maintain his credibility throughout the trial. Rex explains that he is more than willing to admit in front of the jury when he is wrong, such as when an objection comes up and he realizes they are right, which helps to maintain his credibility. He also goes as far as memorizing the evidence section codes, not for the benefit of the judge, but again for the jury, so they can continue to look to him as the most knowledgeable and credible source in the courtroom.

Michael and Rex end with discussing extremely valuable topics such as: using the Warren Buffet method in regards to case selection; mind mapping to prepare for trial; visuals in the courtroom; why Rex avoids using “tricks”; the most important thing Rex does every day and how he balances work, life, and being a city Mayor; insights from Rex’s recent case which resulted in a $41.6M verdict; the extraordinary measures Rex’s firm has taken to practice EVERYTHING; the skills every lawyer needs to learn; Rex’s views on neckties (which is actually surprisingly insightful); and so much more.

 

BACKGROUND

Pursuing a career that helps others has always been R. Rex Parris’ first choice and for good reason. Growing up, Rex’s father lost his leg in a motorcycle accident because of someone else’s negligence. He witnessed firsthand what happens to a family when the pillar of the household is severely injured through no fault of their own. This tragic event inspired Rex to pursue a life that helps people overcome the physical and financial burdens that result from any kind of accident.

Rex never had it easy growing up. His father left at a young age and his mother worked as a waitress to support him and his three brothers. They often had to collect welfare to make ends meet. Rex dropped out of high school and got a job as a busboy, but shortly after started using drugs and nearly ended up in jail. When he realized he had to make a change, he went back to school and turned his life around.

In 1977, Rex received a Bachelor of Arts degree in Law & Society from the University of California Santa Barbara, where he was a member of the prestigious UCSB Scholars’ Program.  After receiving his Juris Doctor in 1980 from Southwestern School of Law in Los Angeles, he was certified as a Master Advocate in 1991 by The National Institute for Trial Advocacy in Washington, D.C.  He has been a member of the California Bar since 1980 and is a member of several federal and appellate courts and multiple trial attorney associations.

In 1985, Rex and his wife Carrol founded PARRIS Law Firm, a personal injury law firm that has helped thousands of families recover from life-altering accidents. PARRIS Law Firm also helps aggrieved workers who have been wronged by their employers, and those affected by environmental catastrophes. Rex handles a wide variety of other cases as well, ranging from class actions to products liability and business torts.

Since its founding, Rex has tried over 50 civil jury trials in courts throughout California and has recovered more than $1.4 Billion in verdicts and settlements for his clients. He made history by being the first lawyer to obtain a million-dollar verdict in Kern County. Years later in 2009, Rex was lead counsel in obtaining a historic defamation jury verdict of $370 million against George Marciano, the founding designer of Guess jeans. Not only has he faced off against some of the world’s largest companies, he consistently wins.

At the start of 2018, Rex went into back-to-back trials and totaled a combined $94 million for his clients in a matter of just 90 days. During both of these cases, Rex worked tirelessly for years and demanded justice on behalf of his clients, obtaining $52,708,374 for two brothers and $41,634,170 for a young quadriplegic whose life will never be the same because of someone else’s actions. Although these clients’ lives will never be whole again, Rex never stopped fighting to restore their well-being. The strength and courage he showed during these trials allowed jurors to hear the real stories of the people behind the lawsuits.

Another one of Rex’s most notable cases involves the largest gas well blowout in U.S. history. Rex, along with thousands of residents of Porter Ranch, are still demanding answers almost three years after a massive gas well blowout was discovered near their neighborhood. Gas was injected underground by Southern California Gas Company into illegal wells. A well experienced a massive failure and blowout in October 2015. This was predicted by Southern California Gas based on public records. Public health officials still do not know if it is safe for people to live there. Residents have been experiencing major health problems, and many have relocated because of the dangerous gases contaminating the air. Rex and his team are dedicated to helping these residents get the financial compensation they need to get their lives back on track after this terrible catastrophe. In November 2018, the California Court of Appeal Second District called into question why Southern California Gas Company and the Los Angeles County District Attorney’s Office rushed into a plea deal that denied criminal restitution to the victims. Rex will see that they justify why the victims wait to recover their losses when the constitution says otherwise.

In addition to personal injury, environmental and employment cases, Rex has also served as counsel on cases involving the California Voting Rights Act. In 2012, Rex served as co-counsel and advisor to attorney Kevin Shenkman and Milton Grimes for a lawsuit against Palmdale, California in order to amend its election process to district voting. This lawsuit was on behalf of the diverse population of the Antelope Valley to have better representation in its city officials.

In November 2018, Rex obtained another successful verdict for the people of Pico Neighborhood in Santa Monica. The judge ruled that Santa Monica’s elections were intentionally designed to discriminate against minority voters. The Plaintiffs fought for Pico Neighborhood to have equal representation on the Santa Monica City Council to ensure accountability for the City’s actions. This ruling will allow the residents of the Pico Neighborhood to finally be heard.

PARRIS was the first law firm to file a class action lawsuit against Southern California Edison for starting the historically catastrophic Woolsey Fire in November 2018. The Plaintiffs are seeking economic and non-economic damages inflicted upon homeowners, renters, and businesses. Hundreds of people lost everything, and it is Rex’s mission to help restore the balance in these people’s lives.

As a successful civil justice attorney, entrepreneur, speaker, and published author, Rex is highly sought after to speak both nationally and internationally. Rex speaks at trial attorney seminars across the country, where he often teaches about the intersection of cognitive science and the persuasion of jurors. He always prepares for trial by using the latest science in persuasion skills. He regularly shares this knowledge as a guest lecturer at Loyola, Pepperdine, and Baylor Law Schools as well as state bar associations across the country.

In the midst of growing his practice into a legal powerhouse, Rex became the third directly-elected mayor of his hometown of Lancaster, California. Since his initial election, he has been re-elected three times, receiving 67% of the popular vote in 2016. Within two years of taking office, Lancaster’s crime rate plummeted 32% and gang violence declined by 81%. Rex has revitalized Lancaster’s historic downtown district and has been universally praised for establishing a family and business-friendly atmosphere. In 2013, Lancaster was named the Los Angeles County Economic Development Corporation’s Most Business-Friendly City in Los Angeles County for the second time in six years.

Rex travels around the world to share his vision of making Lancaster the Alternative Energy Capital of the World, and his successes in this arena have repeatedly garnered worldwide media attention. In October 2018, Rex traveled to Australia to be the international keynote speaker for the Cities Power Partnership Summit, Australia’s leading local government climate change forum. In partnership with Solar City, Rex successfully made City Hall the first building to use all solar power. The benefits were instant, as the cost of power dropped by half for the municipal building. Within two years, the technology was saving the city of Lancaster tens of thousands of dollars in utility costs and brought in close to $400,000. In 2017, the California State Senate designated the city of Lancaster as an Alternative Energy Research Center of Excellence.

As mayor, Rex launched a dynamic economic development division that aggressively pursued and successfully attracted manufacturing giants BYD and Morton Manufacturing, creating hundreds of jobs for the community. After gaining Morton Manufacturing, the city of Lancaster attracted high-tech manufacturing company Innovative Coatings Technology Corporation, which also brought new jobs that contributed greatly to the local economy. Rex’s economic development division continues to transform Lancaster through its Medical Main Street, LED Streetlight Conversion, and Green Energy Public Transportation initiatives. After partnering with IBM Watson the City of Lancaster projections for 2019 are for an additional 45-50% reduction in crime with the use of artificial software and technology. GQ magazine designated him one of America’s 10 most influential Mayors.

Rex also focuses his energy on philanthropy. He and his wife Carrol are the founders of the Parris Institute of Professional Development at Pepperdine Law School, and he is frequently a featured speaker and on the board of Gerry Spence’s famed Trial Lawyers’ College. In 2001 the high school district named the newest school R. Rex Parris High school in the city of Palmdale. The primary mission of R. Rex Parris High School is to serve those students who are significantly behind in meeting their high school graduation requirements so they can still graduate on time. He is the founder of a number of local charities including Lancaster Child Abuse Task Force, Antelope Valley War on Gangs, and Valley Volunteers Program. His law firm has a sister brand called PARRIS Cares, where he and his team focus on making a positive difference in the Antelope Valley through charities and local organizations.

Rex is a green energy champion, economic hero, and one of the most successful practicing attorneys and victim’s rights advocates in California. In addition to all of this, he has found the time to provide assistance and startup funding for a biotech company called Carthronix.  A true champion of justice, Rex will continue to innovate and work tirelessly in everything he does to improve the service and results of his community, clients, and family.

 

RESOURCES

Never Split the Difference: Negotiating As If Your Life Depended On It
By Chris Voss with Tahl Raz

Start with Why: How Great Leaders Inspire Everyone to Take Action
By Simon Sinek

In the Line of Fire: How to Handle Tough Questions When It Counts
by Jerry Weissman

 

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