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Episode

100 – David Ball – Damages Evolving: Practicing Law in an Ever-Changing World

By Michael Cowen — 1 year ago

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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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Episode

86 – Joe Fried – Challenging Your Paradigm

By Michael Cowen — 2 years ago

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In this episode of the Trial Lawyer Nation podcast, Michael sits down with our first podcast guest, Joe Fried of Fried Goldberg LLC in Atlanta, GA, and The Truck Accident Law Firm in Jacksonville, FL. He and Michael discuss everything from challenging your paradigm and evaluating your relationship with money, to utilizing curiosity, skepticism, honesty, and vulnerability in the courtroom.

Michael and Joe jump right into the episode by discussing Joe’s incredible set of case settlements in 2020. Michael opens by asking how Joe managed to get more money on these settlements where others with similar case facts have received less. The two share a laugh with Joe’s response of, “Well, if I can just figure that out Michael,” before getting to his thoughts. Joe attributes his “big change” to challenging his valuation paradigms. He talks about self-justifying why he wasn’t getting the results he wanted, citing such instances as venues, blemishes on cases and insurance situations, and then discovering this was feeding own limiting beliefs. Joe elaborates on this by delving into where his beliefs formed.

  • Law schools neglecting to teach how to value a case.
  • Basing value on our venue or mentor paradigms.
  • Blind adherence to insurance companies’ value.

He began questioning these beliefs and was struck by the realization that he had bought into a paradigm that was NOT of his own making and never challenged it. He says this is the beginning of what needs to be talked about and where we need to challenge why we believe what we believe.

“What’s the value of a death case? What’s the value of a broken arm case? Who said that’s the value, and WHY do they get to say it? Step #1 needs to be to challenge your own paradigm.” – Joe Fried

Joe elaborates by saying he doesn’t like asking for money, not even for a fundraiser, and especially not in front of a jury. He talks about the “money messages” he received growing up from ‘you shouldn’t talk about money’ to ‘it’s rude to talk about money’, and how he examined these things for the first time. He explains how he’s still on the journey and tries to look at these beliefs with a fresh perspective.

“If it’s real that our client is going through something that causes them pain every day
 if that’s REAL, shouldn’t it be huge?” – Joe Fried

Joe then brings up a very insightful question concerning case value, so it makes the case real and personal. “What would I think the value is if what happened happened to the person I love most in the world. If it’s worth that for my loved one, then shouldn’t it be worth that for the client? Why should it be different?”

Michael follows up on this by asking Joe to talk about how he learns what his clients have gone through well enough to internalize and analyze. “It’s really hard to do that from behind your desk,” Joe responds. He elaborates by stating why you have to get into the client’s life and “really look around.” Interacting with the client, their loved ones, and even their not-so-loved ones can provide tremendous insight into their lives.

Joe talks then about case preparation and discovery being a journey, and more specifically, getting to a place where he’s able to take the jurors on this journey. He believes we should welcome juror’s skepticism because, if we’re being honest with ourselves, they’re probably the same feelings we had in the beginning. Joe believes these skepticisms are all opportunities to build credibility and should be embraced. He calls for us to be honest with ourselves and to bring our natural curiosity and skepticism to the table, which he aptly calls “channeling the jurors.”

“[You’ve got to do] whatever you’ve got to do to make it real, but the person who needs convincing is YOU.” – Joe Fried

Michael and Joe then move on to the importance of “feeling it” and communicating non-verbally over being “word-centric.” Joe comments how the struggle to find words to express what’s there is an art in itself. He then calls back to the journey of the case by saying part of that journey is translating these things to dollars and cents. He recommends believing in the value of your case and to practice saying your number; and not cowering in fear when confronted with the juror’s reactions. He believes this to be a necessary and “woefully underutilized” skillset.

Michael then shares his own relationship with money. He opens up about how he thought he was undeserving of money, money in this business was “dirty,” and how this belief led him to resist running his firm like a business. Luckily, by realizing this mindset and relationship with money were unhealthy, he was able to work on himself, get out of his own way, achieve success, and enjoy the success he attained.

“The credibility that comes from willing to be vulnerable and honest is DRAMATIC.” – Joe Fried

Switching gears, the two discuss working up cases; following up on a conversion they had when Joe came to San Antonio for a deposition. During that conversation, Michael asked if Joe was doing a trial depo or a discovery depo, to which Joe responded, “there’s no difference to me.” Joe explains there have only been a few times he has taken a depo he knew would go to trial. He believes if he’s going to maximize the result in a case, he’s only going to maximize the result in terms of settlement if he does his best to nail the other side in depositions.

The pair then move on to discussing motivation. Joe says that what keeps him motivated is finally feeling like he’s a good lawyer and can make a difference. He’s interested in seeing the success of his partners and associates, teaching other trial lawyers, and being involved on the industry on the safety side. He makes it a point to be able to teach others and challenges listeners to look for ways that go beyond monetary in cases to affect change through policy and procedures that will save lives.

Michael shares how he always feels guilt when settling a death case and reveals how getting a safety change made one of his clients feel better because it went beyond money. Joe builds on this by adding that his firm often contributes very directly to solutions at the settlement table. He welcomes everyone to consider the level of change and safety that could be attained if everyone contributed in this way on at least one case and closes with two challenges:

  • Take a sledgehammer to your limiting beliefs and examine your paradigm
  • We all have a duty to make a difference for the good of humanity

Michael chimes in with a third challenge to take care of yourself as a trial lawyer, and cites Joe’s 537-day streak on the Peloton as an inspiration. Joe responds by looking back on his 30-year career and how he went from an “athlete” to “anything-but-an-athlete” which affected his health. “[My motivator] was a life or death motivator,” Joe says while talking about his poor health during trying times. He cites the book “Atomic Habits” by James Clear as defining how small changes over time lead to massive change in your mindset. Joe says that his renewed energy from his consistent and improved habits have positively impacted his practice and motivation.

Michael and Joe end the episode by recapping their three challenges to the listeners:

  • Change the way you think about cases and expand your mind
  • Change the industry and make the world safer in your cases
  • Take care of yourself while doing it

If you’d like to contact Joe Fried you can email him at joe@friedgoldberg.com.

Guest Bio

Joe Fried is considered by many to be the preeminent truck accident attorney in the country.  His office is in Atlanta, Georgia, but he has handled cases in over 35 states recovering more than $1 billion for his clients.  He is the Founder of the Academy of Truck Accident Attorneys, former Chair of the American Association of Justice Truck Litigation Group, former President of the National Trial Lawyers Trucking Trial Lawyers and founding Chair of the National Board of Truck Accident Lawyers.  He is among the first lawyers to be Board Certified by the National Board of Trial Advocacy in Truck Accident Law and sits on the NBTA Board.  In addition to his expertise in trucking, Joe is a former police officer with advanced training in crash investigation and reconstruction, human factors, psychodrama, storytelling and neurolinguistic programming.   He is widely known for his creative and unique approaches to preparing and presenting cases and for his ability to craft and present the compelling human story in each of his cases.  Joe handles a small number catastrophic truck crash cases at a time so he can focus his resources on achieving the best possible results for his clients.  He spends the rest of his time working as a trucking safety advocate, author and educator. Joe has authored books, DVDs and articles on trucking and litigation best practices, and has Joe given over 600 presentations on these subjects to lawyers, judges, and trucking industry stakeholders.