100 â David Ball â Damages Evolving: Practicing Law in an Ever-Changing World
In this very special 100th episode of the Trial Lawyer Nation podcast, Michael has the legendary David Ball back on the show to discuss his soon-to-be-released book, Damages Evolving, written alongside Artemis Malekpour and Courtney and Nick Rowley.
âIâd shake the hand of any person who can keep this going for 100 episodes.â â David Ball
Michael begins the episode by asking David what he means by âDamages Evolving.â David explains that itâs mostly what theyâve learned since the release of Damages 3. He was almost finished with his first draft right before Covid hit. After Covid, turmoil in Washington, George Floyd, and more, he knew the shifts on jury perception would be too large not to re-analyze before publishing.
David continues by elaborating on why Nick and Courtney Rowley were involved in this book. He heard of Nick Rowley and the incredible verdicts he was getting all over the country and thought, how is he doing this? As Michael interjects that David and Nick have different methodologies, David says he feels they are more similar than most believe. And as heâs progressed in his career, heâs learned thereâs no one way to do things. You need to find what works for you and run with it.
âIâve stopped saying âCourtney is Nickâs wifeâ and started saying âNick is Courtneyâs husband.ââ â David Ball
Michael then digs into the meat of the book and asks David about the concept of alignment. David shares that the goal of alignment is to get jurors to start believing something important about your case. This aspect of your case doesnât need to be the most important or most central part. This works because people tend to continue believing what they first start to believe, and if the next thing they hear re-enforces that belief, itâll be even stronger. This repeats until youâre almost impervious to any jabs the defense attempts to make.
âIf you get the alignment in place, you start winning within the first 2-3 pages of your opening.â â David Ball
David then shares how the concept of alignment can break through any preconceptions about attorneys being dishonest. The key is to never tell the jury what to think; it is vital that the jury decides for themselves what they think. He then shares a brilliant example of how to use alignment in a rear-end collision case, which is sure to solidify this concept in every listenerâs head.
After David shares that he doesnât think he would be a good lawyer because he would get too frustrated with the judges, Michael shares some of the mindset work that heâs done to help with this and how being angry during the trial isnât productive. David then recommends the book âThe Way of the Trial Lawyerâ by Rick Friedman, which he admits he thought was just another self help book at first. It discusses ego, why youâre in trial, and the importance of empathy, which David also covers in âDamages Evolving.â
Continuing on empathy, David emphasizes how important it is. Understanding where defense lawyers, jurors, and judges you donât like are coming from can both make it easier on you mentally and create a bond with that person. This allows you to make decisions within their mindset, which is incredibly powerful.
After a discussion about the many benefits of having a female trial partner, Michael picks Davidâs brain about the best ways to give developing lawyers experience in the courtroom. David has a few recommendations, including finding simple cases for them to try, splitting liability and damages, and even hiring actors to play jurors for practice.
Moving on, David shares some brilliant techniques on how to include the jury in an examination of a hostile witness. Referencing the teachings of Joshua Karton, David explains how to position your body, when to stay silent, and what your facial expressions should be saying throughout the process. It sounds simple, but David asserts this type of inclusion of the jury does not come naturally to most people, especially those who would choose to attend law school and be a trial lawyer. Itâs something that takes a lot of practice and vulnerability to do successfully.
âItâs all you working with them to arrive at a mutual understanding.â â David Ball
Michael then asks David about another section of his book on âForgotten Damages.â David explains how these are compensable damages which are often left out of the equation. He then elaborates on some forgotten parts of chronic pain, including trouble sleeping and a sedentary lifestyle. What does long term lack of sleep do? It makes you about 1/3 more likely to develop cancer and heart disease, leading to a shorter remainder of life. Â With a sedentary lifestyle, the long-term effects are well-known and documented. While finding and highlighting these forgotten damages is more work for the lawyer, David goes as far as to say a lawyer is committing negligence if he or she does not look for them in a case.
âIf someone is in great pain, and you donât look for the forgotten part of their pain, what the hell else is there?â â David Ball
After a brief but very insightful look at how framing your clientâs loss of control over their life is a loss of freedom resonates extremely well with conservative jurors, the conversation shifts to experts. David explains that evidence presented by our experts must be both reliable and relevant – otherwise, itâs not evidence at all. He outlines the three criteria we should have for our evidence and adds that if the defense expertâs evidence is not reliable, you need to frame it to show the jury they are cheating. And not just cheating your client – theyâre cheating the jury, and they are the villain. The trick is to do this without ever making an accusation. Like with the other techniques mentioned in this episode, jurors must come to their own conclusions.
âItâs a way of showing the other side isnât just mistaken. Itâs to frame it to show they are cheating. And theyâre not just cheating me and my client; theyâre doing the worst sin you could do. They are cheating the jury.â â David Ball
Before wrapping up this episode, Michael asks David to discuss another topic in his upcoming book- respect. David shares how our need for respect stems from an evolutionary need to stay in the tribe to survive. This survives to this day, causing the feeling of disrespect to be one of the most memorable and hated feelings we have. David takes it a step further to assert that every act of negligence is an act of disrespect to EVERYONE, and you need to frame your case that way.
âAs powerful of a persuasive tool as you will ever find, is to harness the power of how much we HATE disrespect.â â David Ball
If you would like to speak with David Ball or his partner Artemis Malekpour about working on a case or their research, you can contact David by email at jurywatch@gmail.com or Artemis at artemis@consultmmb.com.
âDamages Evolvingâ is available now for pre-order on the Trial Guides website and will release on April 15th, 2022.
This podcast episode also covers Davidâs templates, why some of the most evil people in history actually had great empathy, how to split an opening statement between 2 different lawyers, why brain injury cases should be the highest value cases, why you should always check to see if your client has a brain injury, how our hatred of disrespect got Donald Trump elected, and much more.
Guest Bio:
David Ball (Malekpour Ball Consulting) is the nation’s most influential trial consultant. With partner Artemis Malekpour, he guides plaintiff’s civil cases and criminal defense cases across the country. They are the nation’s only trial consultants qualified to help attorneys with Reptilian methods and strategy, as well as with Ball’s David Ball on Damages techniques and a wide range of other essential approaches. They have an unparalleled record in helping attorneys with every size and kind of case.
Dr. Ball is also a pioneer in adapting methods of film and theater for use in trial. His theater/film students hold Oscars, Obies, Tonys, and Emmys. His Theater Tips and Strategies for Jury Trials has been a bestseller for nearly two decades, and his Backwards and Forwards has been a foundation of theater and film training since 1984.
Dr. Ball wrote two of the bestselling trial strategy books ever published: David Ball on Damages andâwith Reptile cofounder Don KeenanâReptile: The 2009 Manual of the Plaintiff’s Revolution.
Dr. Ball is an award-winning teacher for the North Carolina Advocates for Justice and the American Association for Justice’s National College of Advocacy. He has also taught law students at North Carolina, Wake Forest, Pittsburgh, Minnesota, and Campbell law schools, and at Duke Law as a senior lecturer. He has long been the nation’s most in-demand continuing legal education speaker.