Damages

(2^nd Ed.) by David Ball

Book report by Geoff Hamby

I. The Book

a. The Basics

Damages by David Ball begins with the “ten basics” of juror decision making about giving money in any case. While these ten principles are called “basics,” reading this book was my first exposure to them. These ten principles must be shown in every jury trial in order to ensure the client is fully compensated. The ten basics are; 1) Degree of harms and losses, 2) Worthwhileness of the money, 3) Juror’s job is to fix/make up for, 4) Proportion of time spent on damages, 5) Defendant’s conduct, 6) Who gets the money?, 7) Who really gets the money?, 8) Client’s point of view, 9) Handling why jurors give less, and 10) You (the lawyer). These ten principles have to be kept in mind at all points in the trial and we have to ensure that each and every question is answered. Or else our client will not receive the full value of their case.

b. Motivations

David Ball then goes into the potential motivations that jurors may have both for giving money and for not giving money. These motivations vary from political positions to misplaced fears of bad trial consequences to making the juror feel important. This is probably the most difficult part of the entire theory to implement. Each of these motivations can be manifested in each individual juror in a different way and a different level. As lawyers, it is our job to identify whichever motivation is most powerful in each juror both to award damages and not to award damages. We have to appeal directly to the positive motivation and quell the negative one. The difficult part will be identifying which motivation applies to which juror. Identifying these motivations requires a full and thorough voir dire. (There’s a separate section in the book on voir dire later.) However, even after the trial has begun, it is imperative to keep these motivations in mind throughout the presentation of the evidence.

c. Parts of Trial

Each individual part of the trial (voir dire, opening, direct, cross, and closing) has its own section in this book. Each individual part of the trial has key rules to keep in mind and is broken down in great detail. There is no way that I could cover everything, but I’ll give the highlights of each section as much as possible.

In voir dire, the first rule is to shut up and listen. As lawyers, we should be talking no more than 10% of the time. Each question should also be open ended and followed with questions that will pull all of the possible information out of the juror. The only time that closed-ended questions should be used is to (1) change topics, (2) nudge quiet jurors into response mode, and (3) when preparing a for-cause challenge. The final point I’ll make on voir dire is that we cannot change juror’s minds about the way the world works, so there’s no use in trying. Arguing with a juror or advocating for your client during voir dire will only backfire and lead to jurors disliking you.

For opening, this book has a kick-butt outline. This version has six steps. (Damages 3 breaks one of the steps in half making seven, but it’s essentially the same.) 1) Rule (from Rules of the Road) and consequence. 2) Story of what the defendant did. 3) Blame, who are we suing and why? 4) Undermine, what is wrong with the defense theories? 5) Damages, what are the harms and losses? 6) Money, what do you want and what can the jury do about it? This is certainly an outline I will be following in the future.

Direct-exam is focused on who to call as a witness and when to call them. The primary rule for calling witnesses is to remember that equal time should be spent on damages and proving liability. If the jury gets hung up on only liability, then they won’t give your case the proper value. If they only hear about how badly your client was hurt and not what the defendant did to hurt him or her, then they won’t have the proper motivation to compensate for those damages.

Cross-exam was one of the shorter chapters but still had good information in it. There were some pretty good examples of dealing with defense experts. The idea was to “hitchhike” off of their testimony. Doing that would turn a defense liability expert into a plaintiff damage expert. They’re expecting to be fought on their opinions but if we don’t do that, and instead have them give us good answers for damages that we can use in closing, then we can get the best of them.

Finally, the book touches on closing. Naturally, I assumed that the goal of closing was to hammer home your point and really make people believe you… but I was wrong. This book explains how closing is more for arming those jurors that already agree with you with things they can use in deliberation to sway people their way. There’s a ten-part structure for closing provided as well. It is; 1) Why we’re suing, 2) Undermining defenses, 3) Massage liability instructions, 4) Harms, 5) Economic damages, 6) Money, 7) Massage damage instructions, 8) Review your one-liners, 9) Motivating arguments, and 10) Massage the verdict issues. Each of those points have specific tools and directions under them, but if that general outline is followed, a very strong closing should result.

d. Punitives & Fighting Tort Reform

Much like Reptile and many other Plaintiff’s books, Damages gives advice on how to combat the stereotypes and misinformation pushed by the tort reform movement. I combined this with the information on punitive damages because it kind of goes hand-in-hand. No jury operating from a place of “tort reform” would ever be willing to give punitive damages. The thing is, we can’t change peoples’ minds about this in the little amount of time we see them, so we have to show them how we don’t fit into what they believe. We have to change the way they look at us as individual attorneys and not worry about how they look at attorneys as a whole. The chapter covers the proper way to advertise as a general rule and then the number one rule about current jurors; they only care if we care. We have to actually care about what happens to our clients. If we try to fake caring or be removed from the process, they will lump us in with their tort reform ideology and never give our clients a fair shake.

e. Appendixes

The book closes with a very thorough set of appendixes and examples. They cover voir dire, opening, a little on tort reform, and then finishes up with a motion in limine example for limiting what a defense expert can say. These appendixes aren’t just examples to be referenced, they’re explanations of what is covered in the main part of the book. There are so many little tips in this section that I couldn’t begin to list them all, but I will say this… all of my stories in openings will now be told in present tense.

II. How this book has impacted me and how it will help our clients

a. Prepping for First Trial

I have my first trial scheduled for November 4. I have already begun using this book to frame my voir dire and opening. I know that it will undoubtedly be edited numerous times, but having the outlines and guides provided in this book have allowed me to at least form a somewhat reasonable beginning. Tyler, Jarid, and I are so lucky to be at a firm that allows us to jump head first into litigation. Most of my friends and classmates won’t sniff the courtroom for several years. Because of that opportunity, it is imperative that we’re able to use tools like Damages to make sure we are as ready as we can possibly be.

b. Applicable to Both PI & CAT Cases

Something that I found particularly useful about this book was the way he provided examples and explanations that apply to catastrophic cases with massive damages but also apply to personal injury cases with only minimal damages. What’s provided in this book is a strategy to maximize the potential of EVERY case. It’s impossible to turn a PI case into a CAT case, and no strategy can change that, but it is certainly possible to turn a contested PI case into a huge win for our clients and the firm. I get sick and tired of hearing story after story of people who go to an “assembly line” settlement lawyer and end up getting absolutely screwed over. I’m proud to say that we don’t do that and the strategies we implement from this book and others help us to ensure we never end up like that. It’s a lot of work. It would be much easier to just take whatever the insurance company offers and put a checkmark next to each case, but it’s worth it to do the work. We impact peoples’ lives in a significant way with what we do and Damages will help me ensure my impact is a positive one.

III. Conclusion

I thoroughly enjoyed reading this book. I mean that genuinely. I enjoy becoming a better lawyer and better advocate for our clients. Reading for class was horribly tedious and boring but reading things that actually apply to what we do is very rewarding. I’ll be immediately implementing many of the ideas espoused in Damages and look forward to what I’ll learn in book #5.