Voir Dire

108 – Jessica Brylo – Trial Dynamics: Tipping the Scales in Your Favor

On this episode of the Trial Lawyer Nation podcast, Michael sits down with Jessica Brylo, owner and lead consultant at Trial Dynamics. They discuss Jessica’s path to success, identifying juror attitudes, jury decision-making, case framing, focus groups, and much more.

Michael begins the episode by asking Jessica about her background and what got her into jury consulting. Jessica shares how she went to law school at Duke, where she got in contact with David Ball. She began attending focus groups and learning from David, and it became clear that jury research and consulting was her calling.

Michael then asks her to share some wisdom she’s learned along the way regarding juror attitudes. Jessica starts by stating most jurors and juries do a good job and arrive at logical conclusions; the interesting part as a researcher is looking at how they got there (Hint: It’s rarely how the lawyer thought they would). This is because jurors make decisions based on their own past experiences, and much of their decision-making process is unconscious.

Jessica continues on this line of thought by explaining how the different facts you hear every day are all brought into your brain and “filtered through your life experiences.” If this new fact fits within those experiences, you will likely accept it. If it does not fit within those experiences or goes against your beliefs, you’ll either change the fact in your mind or throw it out altogether. The key is to build your story around what those pre-existing beliefs are and fit it within that framework. And since every fact you hear is filtered through previously learned facts, Jessica emphasizes that messing up during voir dire and opening statement is extremely hard to come back from.

“When [jurors] hear a fact, they don’t just hear the fact in isolation.” – Jessica Brylo

Michael and Jessica continue to discuss Jessica’s experience and insights into juror decision making, including how to keep a positive atmosphere while finding what jurors you need to strike, what you can do to prepare a case of any value, and how to identify potential leaders on a jury panel.

The conversation then shifts to the practice of Case Framing, something Jessica specializes in. She defines it simply as the way in which you portray a case, then elaborates on the different ways to tell this story in a persuasive way, starting with not focusing on the plaintiff. Instead, Jessica says you should focus on the wrong the defendant did; better yet what the company or industry as a whole did, and the potential ramifications of that wrongdoing.

Additionally, Jessica explains how you need to keep your focus on the facts of YOUR case and not fall prey to the “red herrings” the defense throws at you. While you need to address what happened in the crash, you should remind the jurors that the point is irrelevant to the case as a whole. When the defense tries to take the crash out of context, it’s your job to put it back into context.

“You can’t play a defensive game all the time. You need to focus on your best facts, focus on where you need the jurors to be.” – Jessica Brylo

Michael then asks Jessica a somewhat controversial question- what is the main purpose of jury selection? She acknowledges the different opinions of Nick Rowley and other prominent trial lawyers, but says for her it’s:

  1. Reveal bad jurors.
  2. Form a connection with the jurors.

Jessica then shares her insightful strategies for finding out who the bad jurors are, then how she connects with the jurors.

While Jessica recognizes the differing opinions surrounding jury selection, there are certain mistakes that just should not be made. Common ones she sees are the lawyer talking too much about themselves, asking jurors if they “have a problem” with things or if they “can be fair” about things, and asking the jurors’ opinion about political topics like Trump or the COVID response.

“They’re trying to do the right thing, but it’s just not the right phrasing and words to do it.” – Jessica Brylo

Michael and Jessica wrap up the episode by discussing focus groups. In an ideal world, you could hire a consultant to run all your focus groups but given budget constraints and varying case values that’s just not realistic. When running your own focus group, Jessica recommends doing your best to find a truly representative jury pool, which can be harder than you’d think. She also cautions against some common mistakes she sees in focus groups, including pushing your own stuff too much and not focusing on the negative aspects of your case. They finish up on what to do with the valuable, though negative, information you receive at the focus group.

Jessica wrote and released a free e-book for plaintiff lawyers, detailing the do’s and don’ts of running your own focus group. If you’re interested in this free e-book, email jessica@trialdynamics.net and request a copy. If you’re interested in working with Jessica Brylo, visit her website at www.trialdynamics.net.

This episode also covers the Arizona Jury Project, why word choice is so important, how to use the defense’s behavior throughout the lawsuit against them with the jury, and so much more.

 

Guest Bio:

Jessica Brylo, J.D., M.A. is the owner and lead consultant at Trial Dynamics. She graduated cum laude from Duke Law School in 2007 where she received her J.D. and Masters in Psychology. While there, she was trained by one of the nation’s leading trial consultants, David Ball, Ph.D. She was given the privilege held by only a handful of people in the country of being able to study video of real juries deliberating from the Arizona Project. While at Duke, she spent three years studying juries, visiting courthouses, interviewing jurors, and interning with Dr. Ball. She trained in the art of editing opening statements and closing arguments to address the jurors’ unconscious minds, thus making cases stronger by creating jurors who fight for your client when they are in the deliberation room.

She founded Hoffman Brylo Consulting, now Trial Dynamics, in 2008, a full-service consulting firm specializing in plaintiff’s cases. Since then, she has expanded the firm to serve a wider range of cases nationally. She believes that no two cases are alike and that jurors respond to small nuances that make huge differences in verdicts. Consulting strategy techniques can reveal these subtleties and shed light on how to overcome hidden problems in the case, but only if conducted properly with attention to detail.

107 – Stefano Portigliatti – The Power of the Individual: Insights into Juror Psychology, Communication & Understanding

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Stefano Portigliatti, a trial lawyer out of Jacksonville, Florida, who recently secured a $14.6 million verdict on a tough trucking case. Michael and Stefano discuss Stefano’s background, how he connects with jurors individually, and all the details of his recent verdict.

To begin the episode, Michael asks Stefano about his background and how he got to where he is today. Stefano shares how his family is Italian, and how he grew up in Brazil. He had dropped out of college, but after some life experiences “woke him up to his priorities,” he decided to go stay with his brother in Tampa, Florida, and finish school. The pair finished college, then decided to attend law school together, where Stefano was bit by the “personal injury bug” and found his calling.

His family runs multiple businesses out of Orlando, including a Human Behavioral Research Group. It was in this lab where Stefano studied human behavior, motivation, personality, and social studies through neurosciences. Before law school, he applied this to executive coaching for businesses, but quickly realized the implications on jury communication and connection.

Stefano then elaborates on his personality assessment tool, which goes to the root of what we care about and how we communicate. Some jurors care about the rules being broken, others empathize with the social consequences, and others want to plainly see the numbers.

After Michael asks him what he does to motivate different people, Stefano explains the two-axis that separate people into four different quadrants. The first axis is their level of assertiveness, defined as those who need to influence the environment in accordance with what they want, versus those who look to the environment for cues. The other axis is the individual’s responsiveness, broken into task/objective-oriented versus people-oriented. When you place both continuums together, you get four quadrants from which 70% of human behavior can be attributed.

Michael digs further into how Stefano assesses these tendencies in jury selection. He shares how he doesn’t ask jurors explicitly but instead looks for cues based on their answers to questions, such as their occupation and eagerness to participate in the process. Once he has this information, he tailors his presentation of the case to each individual juror and what they value.

“Communication is not what you say. It’s what people understand.” – Stefano Portigliatti

This technique requires the lawyer to “talk to the juror, NOT the jury.” Stefano argues that this is so important because, at the end of the day, they are all individuals who are forming their own opinions until they step into the deliberation room. He then shares some enlightening examples from his recent trucking case verdict, including questioning a defense witness on his engineering qualifications when he had an engineering student on the jury, the client discussing his relationship with God after the incident when most of the jury were devout Christians, and even questioning the defense’s tow truck driver before relying on a truck driver on the jury to use “common sense” in deliberations.

Michael then asks Stefano to give some background on what happened in this case. Stefano explains how his client was an 18-wheeler driver who experienced air loss in his chassis while on the road during a bout of rain. He was unable to get off the roadway and eventually came to a hill, where he got stuck. He put out triangles on the road, but only put them out to about 160 feet instead of the required 200 feet. He gets back in his cab to avoid the rain when another semi comes over the hill, swerves, and jackknifes into the client’s semi. A witness later testified that the defendant driver was looking down the entire time.

Stefano’s client was flung from the sleeper cab into the front of the cab, where he hit his head and was left with a bad neck injury. They later discovered he also suffered a brain injury in the crash.

Listening to this story, Michael notices some clear issues Stefano had to face, including blocking the lane of traffic on the roadway and that he should have inspected the vehicle before departing. But shockingly, the jury found Stefano’s client 0% liable for the wreck. Of course, Michael asks how Stefano was able to do this. In short, the answer is putting in a LOT of work.

Stefano began to work up this case by consulting with experts, including one on CMV safety, to figure out what happens when a chassis loses air. Then, he held a total of five focus groups just on liability. At each focus group, he was asked questions that he didn’t have answers to. By the end, he learned so much from each of these groups that he went from 70% liability on his client in the first focus group to just 20% liability in the last focus group. The key was accepting and owning the things his client didn’t do right while focusing on the inattention of the defendant driver.

Another interesting aspect of this case was that the client’s brain injury wasn’t diagnosed for over a year after the crash. Luckily for Stefano, while the diagnosis took a while, his client’s symptoms were well documented from the time of the crash. He experienced intense dizziness, vertigo, depression, nightmares, and issues with directions. When they did a specialized MRI on him, they found that he did in fact have a brain injury, which explained all these symptoms.

Stefano then explains how the human story added credibility to the medical story. He had lots of “before and after” witnesses, including family, friends, and co-workers. Each of these witnesses had a distinct reason for being there, which Stefano made sure to emphasize since the order of the trial was much different than he had anticipated.

Stefano’s client received $4.6 million for economic damages and a massive $10 million for human loss, so Michael’s next question is about how he was able to get so much for human loss. Stefano shares his highly effective “damages pie chart,” which he finds particularly useful in cases with high medical expenses in the past and future. He divided the pie into 6 slices, with only one of those being past and future medical bills. He then fills the rest of the slices with examples from the case, such as physical impairment and loss of quality of life. This chart resonated so well with the jury that they asked for it during deliberations.

To wrap up the episode, Stefano highlights two points that he thinks are the most significant of this trial; flexibility and credibility. Trials will never to exactly how you planned them, so being able to adapt and roll with the punches is key. He also put a lot of effort into credibility, opting to go for an understated opening statement to ensure he didn’t overstate by event 1%. This built trust with the jury, resulting in this incredible verdict for Stefano’s client.

This podcast episode also covers getting over the fear of the jury, detailed stories of how Stefano connected with each juror individually, how Stefano adapted to the defense’s delay of the trial, and so much more.

 

Guest Bio:

Stefano D. Portigliatti is a trial attorney specializing in commercial motor vehicle cases at Coker Law, PA in Jacksonville, FL.  He has represented clients in over a hundred trucking cases and helped obtain millions of dollars in verdicts and settlements. Stefano is among the first 20 attorneys in the United States to pass a rigorous exam on trucking laws and an intensive background check to prove that his practice is dedicated to litigating trucking crash cases. He was also one of the youngest attorneys to be included among Super Lawyer’s Rising Stars and the National Trial Lawyers’ Top 40 Under 40.

Stefano often presents on topics related to trial and trucking litigation. He is on the Board of Regents of the Academy of Truck Accident Attorneys. He is also the founder of truck.law™, which assists other plaintiffs’ attorneys handling trucking cases with forms, resources, and seminars available at www.truck.law.

Stefano was born in Sao Paulo, Brazil, to a hard-working Italian family. Before becoming a lawyer, he was engaged in diverse business ventures across multiple continents. Stefano is the Vice President of SOAR Global Institute – a laboratory that researches human behavior and development. Stefano speaks internationally in the areas of emotional intelligence, innovation, and human development. He is a certified master coach and trainer and has developed several courses and systems that apply psychology and behavioral analytics to management and trial strategies.

Stefano is a musician and likes to sail, golf, cook and travel with his wife, Brittany, and their two sons, Luca and Leonardo.

 

105 – Keith Mitnik – Deeper Cuts: Systems That Simply Work

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary Morgan & Morgan trial lawyer, podcast host, and author, Keith Mitnik, for a second time. They discuss Keith’s recently released book, “Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts,” new voir dire techniques, and the importance of words.

Jumping right into the podcast episode, Michael asks Keith how he gets full damages on cases with no obvious villain. Keith shares a recent example where he framed everything around the statement, “It’s not about how much she’s going to get. It’s about what was taken, and what’s a fair value for what was lost.” He draws an insightful connection between our modern-day justice system and the “eye for an eye” justice system of the past. The “brutal” eye for an eye system was never about the punishment, but about recognizing fully what was taken from the person who was wronged. He’ll explain this concept to the jury, and the results are powerful.

Keith continues by explaining the evolution of his voir dire process over the years, including how and when he gets the jury to get a discussion going. He’s tried many methods throughout the years and shares their flaws, but feels very good about his current strategy, which he calls “The First Big 3.” He’ll set up voir dire with the story about full recognition, then start questioning the jury on the big 3 types of bias:

  1. Feelings against this type of lawsuit.

  2. Feelings against the non-economic part of pain and suffering.

  3. Feelings against large verdicts.

After asking the jury about these 3 items, he’ll share the idea that it’s not about how much was taken, but how much was lost, and ask how it felt when they heard that.

Continuing this line of thought, Keith adds another change he sometimes makes to his voir dire, which is asserting that the jury’s job is not to assess the income of your client – it’s about the value of his or her health, which is way more precious than income. These changes have made for a great dialogue between Keith and the jury.

Michael then asks Keith about something he loved in the book – having the client create a list of the “little things.” Keith explains how we often base damages around the big things that are important to the client – but especially with hobbies, those things are rarely important and are often unrelatable for the jury.

To assist with this process, Keith gives clients a small notepad and a homework assignment- to write down every little thing they notice has changed due to their injury. This includes things they continue to do but in a different way and things they do but now it hurts. Then, he’ll sit down with the client to choose a list of the best ones. By the time the client is deposed, the client is able to readily provide a laundry list of relatable examples of how the crash has changed their life, and the defense lawyer is highly motivated to settle the case.

This leads Keith to share a brief but heartfelt story of a recent trial where he decided to ask the jury in voir dire about race, and why he plans to do it again in the future. It’s a story sure to resonate with any trial lawyer hesitant to bring up a sensitive topic in voir dire.

If you follow Keith Mitnik, you know he’s a man of many words – a self-proclaimed “word nerd.” So Michael asks the next logical question – why do words matter, and how does he come up with the words he uses? Keith explains the process he uses to find the best anchor words, where he circles any words he feels might not be the best, then turns to one of his many trusty thesauruses to see what else is available (He recommends either Word Hippo for iPhone or Wordflex for iPad). He shares some real-life examples before explaining the difference between inert words and activator words:

     Inert Words – Ambiguous words with different meanings to different people.

Activator Words – Consistently activate a particular meaning and a feeling.

From there, a word can be either a positive or a negative activator word, meaning it can work in your favor or against you if you aren’t careful. Keith shares numerous examples of inert and activator words, and how he chooses them based on the person he’s addressing.

Moving away from “Deeper Cuts,” Michael asks Keith what his strategy is for going into a case that someone else worked up to try it. Keith highlights the obvious disadvantages as well as the not-so-obvious advantages of this – notedly that he’s able to experience the case “in one, overwhelming wave, just like it will with the jury.” It provides a truly fresh perspective. His one requirement is that he needs to spend time with the client before the trial begins, to connect with them in his heart.

He continues by sharing the different ways he’s split cases up with other lawyers before, and how it varies depending on the other lawyer’s experience and skillset – though as you probably know, he almost always takes the voir dire, opening, and closing.

Michael and Keith then wrap up the episode with a promise to have Keith return soon. In the meantime, you can purchase his books Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts and Don’t Eat the Bruises, listen to Keith’s own podcast “Mitnik’s Monthly Brushstrokes,” and even join his listserv. To join, email Keith at kmitnik@forthepeople.com and copy his assistant Mary Arnold at marnold@forthepeople.com asking to join. They’ll even send you the past editions if you ask!

This podcast episode also covers why it’s important to emphasize your client’s injuries were brought to them “unnaturally,” a story from a recent trial where Keith had to improvise with a client on the stand, how to combat a convincing defense expert, why Keith almost always does both voir dire and opening, and much more, including numerous stories of Keith’s real-life trial experiences.

 

Bio:

Keith Mitnik is the author of Trial Guides’ bestselling book, Don’t Eat the Bruises:  How to Foil Their Plans to Spoil Your Case.

He is also known for his popular audiotape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, oftentimes 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.

 

103 – Delisi Friday – A Bittersweet Victory: Post-Trial Discussion

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his Director of Marketing and Business Development Delisi Friday for a raw, honest conversation about his (very) recent jury trial win where the number was not what he wanted.

“When you try hard cases, you don’t always get what you want.” – Michael Cowen

They begin the podcast episode with the facts of the case. They were in federal court in Laredo, Texas, a community with a huge trucking and logistics industry. Their client was rear-ended by a truck at only 5 miles an hour. Initially, the client was diagnosed with only soft tissue damage, but later discovered a herniated disc that required surgery. This was argued by the defense to be a pre-existing condition, which the jury ultimately agreed with, only awarding enough money to cover the medical bills before the surgery.

As Michael explains the largest offer they received was only $25,000 during the trial, when the jury verdict was $80,000, Delisi asks Michael why he feels this is a loss. He breaks it down into 2 reasons: 1) he doesn’t feel the client is materially better off because they went to trial, and 2) he believes the case is worth a lot more than the result.

With that being said, he recognizes the challenges he was up against – low property damage and medical treatment gaps. When you try cases like this, he argues you’re not going to win them all. He tried the case well and gave it everything he had, but it didn’t go his way this time. He compares this to the Bengals, a great football team, losing the Super Bowl this year. At the end of the day, they’re still a great team.

“You’re not always going to get a home run every time you get up to bat.” – Michael Cowen

One of the biggest hurdles in this case was the low property damage. Delisi asks Michael about the challenges of them, and what he does to overcome them. Michael emphasizes that low PD cases are always a challenge because they fail the “oh shit!” test. When you have a picture of a vehicle after the wreck that causes people who see it to say, “oh shit, are they okay?” it’s much easier to try than when you don’t have that initial reaction.

Michael shares the strategy he used in this voir dire, which acknowledged both potential outcomes of a wreck – where the vehicle can look really bad but the person is okay, and where the vehicle can look almost completely fine but the person is very injured.

Delisi then asks Michael about his mindset going into this trial. Michael reiterates, as he has in many past episodes, his mantra for trial – the judge and the jury want to do the right thing, and he’s going to have fun (which he did). But as Delisi asks him why he didn’t want to go talk to the jury after the verdict was read, he says he’s just not there yet. He’s also not sure if it would have been helpful, given both his mindset and the gut feeling he believes the jurors made their decision off of. But even after this experience – he still trusts the jury and will continue to do so for his future trials.

“It feels like I asked someone on a date, they said no, and then I’m supposed to call them and ask why they didn’t want to go out with me.” – Michael Cowen

Changing the tone, Delisi asks Michael what he thinks went well with the trial. He shares how they ran a fast, smooth trial, he felt very comfortable and got to use two “new toys”, a King flip chart and a magnetic white board with cardboard vehicles , which he thinks were highly effective for the cost. He felt good about the cross-examination of their experts and the witnesses they decided to put on. He also explains how the client is a Spanish-speaker, along with most of the witnesses, the challenges that came with this, and how they overcame them.

This leads to Delisi asking about the two associate attorneys from their firm Michael tried the case with, and what takeaways he thinks they had. Michael shares that he had them each take 2 witnesses, which they both did very well. And while he admits it’s not as fun as doing it all yourself his firm takes pride in training and this truly is the best way to learn.

Delisi then asks the question on everyone’s mind – why is Michael Cowen trying a low property damage case? He explains how Malorie Peacock, his partner, is out on maternity leave, and he didn’t think it would be fair to the client or the referral partner to have two associates with less experience be the ones to try it themselves. He was also excited to try a case in a courtroom, even though low property damage cases aren’t cases he plans to take on in the future.

Circling back to mindset, Delisi wants to know more about why Michael was in such a good headspace going into this trial. He cites the work he has been doing on mindset and acknowledging he doesn’t have control over what the jury’s going to do. Even the best home run hitters in baseball strike out, but as Delisi playfully quips “I’m proud you got on base.”

Before wrapping the episode, Michael adds one more aspect of this case that made it tough – the fact that he didn’t have a “villain.” The driver admitted it was his fault, the defense lawyers were reasonable, the company didn’t train much (which is not the custom in this venue). It’s hard to get the jury to give you money when your client’s just hurt – there needs to be a villain. But sometimes, it’s really just a crash in a parking lot.

Ending on a heartfelt note, Delisi praises Michael’s courage and honesty for recording this episode only one day after the verdict was read and openly sharing this on the podcast. Even after this, Michael adamantly encourages everyone listening to get out there and try cases, even if they don’t always go the way you hope they do.

“If you can keep swinging, you’re going to hit something. So get out there and swing.” – Michael Cowen

 

100 – David Ball – 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.

“I’d shake the hand of any person who can keep this going for 100 episodes.” – David Ball

Michael begins the episode by asking David what he means by “Damages Evolving.” David explains that it’s mostly what they’ve 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 he’s progressed in his career, he’s learned there’s no one way to do things. You need to find what works for you and run with it.

“I’ve stopped saying ‘Courtney is Nick’s wife’ and started saying ‘Nick is Courtney’s husband.’” – 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 doesn’t 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, it’ll be even stronger. This repeats until you’re almost impervious to any jabs the defense attempts to make.

“If you get the alignment in place, you start winning within the first 2-3 pages of your opening.” – 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 listener’s head.

After David shares that he doesn’t think he would be a good lawyer because he would get too frustrated with the judges, Michael shares some of the mindset work that he’s done to help with this and how being angry during the trial isn’t productive. David then recommends the book “The Way of the Trial Lawyer” by Rick Friedman, which he admits he thought was just another self help book at first. It discusses ego, why you’re in trial, and the importance of empathy, which David also covers in “Damages Evolving.”

Continuing on empathy, David emphasizes how important it is. Understanding where defense lawyers, jurors, and judges you don’t 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 David’s 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. It’s something that takes a lot of practice and vulnerability to do successfully.

“It’s all you working with them to arrive at a mutual understanding.” – David Ball

Michael then asks David about another section of his book on “Forgotten Damages.” 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.  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.

“If someone is in great pain, and you don’t look for the forgotten part of their pain, what the hell else is there?” – David Ball

After a brief but very insightful look at how framing your client’s 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, it’s not evidence at all. He outlines the three criteria we should have for our evidence and adds that if the defense expert’s evidence is not reliable, you need to frame it to show the jury they are cheating. And not just cheating your client – they’re 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.

“It’s a way of showing the other side isn’t just mistaken. It’s to frame it to show they are cheating. And they’re not just cheating me and my client; they’re doing the worst sin you could do. They are cheating the jury.” – 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.

“As powerful of a persuasive tool as you will ever find, is to harness the power of how much we HATE disrespect.” – 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.

“Damages Evolving” is available now for pre-order on the Trial Guides website and will release on April 15th, 2022.

This podcast episode also covers David’s 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 and—with Reptile cofounder Don Keenan—Reptile: 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.

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