New Trial Tech from David Ball, Don Keenan, Jim Fitzgerald and Gary Johnson



With his Damages book, David Ball gave plaintiff’s attorneys a structured way to talk about damages and to present a case from opening statements throughout the trial. It wouldn’t be an overstatement to say it revolutionized the courtroom for many plaintiff’s attorneys.

Following on the heels of that, Rick Friedman and Patrick Malone gave us Rules of the Road, a systematic way to approach liability. I liked Rules of the Road because it spelled out a number of things that I had been doing intuitively, but it gave a structured way to repeat and handle cases.

Well, there’s a new book coming out this weekend: REPTILE: The 2009 Manual of The Plaintiff's Revolution. If you click on the link, there’s a review from Lawyer’s USA in pdf format.

They did a ton of research and based on neuro psychology or cognitive psychology, have found a way to turn tort reform on it’s ear. A lot of people do not want to give money to ‘greedy plaintiff’s’ and ‘jackpot justice’, but if you show them community standards and how the defendants violate community standards, and how that affects the juror and their family, they will make the defendants pay.

Interestingly enough, people that were strongly against civil litigation and big advocates of ‘tort reform’ would still give solid verdicts when using this system.

A lot of research has been done in the past 10–15 years on social sciences, how people think and how people actually make decisions. The research in this book is based on deep in the id, the reptilian response to situations, which the ‘fight or flight’ syndrome is based on.

The book is coming out this week and I’ll be going to a seminar in Atlanta on it Friday and Saturday put on by Don Keenan and David Ball. I’m excited and looking forward to seeing what they’ve come up with. It meshes with everything I’ve read on NLP, neuro psychology and cognitive psychology. So it should be good…..Plus, it’s hard to argue with the track record of the authors.

Here is information for the Atlanta Seminar on May 8–9, although it might be too late to sign up. If you miss it, David Ball is giving the seminar in Dallas on June 12, 13.

If you just want the book, you can get it from their website, from Don Keenan’s publishing company, or from Barnes and Noble. It’s not on Amazon yet or Trial Guides, yet.

I’ll report back after the seminar. A lot of it is plaintiff’s attorneys only, so I might not be able to give all of the scoop, but enough to give some pointers (with the author’s permission) and enough to let everyone know whether it’s worthwhile.

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Book Review: The Art of Learning

The Art of LearningI just finished reading the Art of Learning by Josh Waitzkin. Josh was the young chess prodigy that was featured in the movie Waiting for Bobby Fischer. Well, Josh has gone from winning a number of National chess championships to moving to Tai Chi, a martial arts. He’s won a stack of National Championships in Tai-Chi and some World Championships in Taiwan.

Josh has written a book about his learning and performance styles that have taught him to excel. The thing that stuck out most in my mind is how aggressively he has looked at his weaknesses, or taken any time that he has been beat and rather than running away from it, ignoring it, or pretending it didn’t happen, he would turn straight into the weakness and turn it into a positive.

One example was that when he was playing chess, he didn’t do well with distractions. Most people don’t. Some of the ‘diry players’ would purposefully kick him under the table and then act innocent, hum a tune and the pretend nothing happen when monitors were around and so forth. So instead of trying to call them out on it, or jump up and down and complain, Josh realized that this was 1) taking him out of his game and 2) giving the poor sports a leg up. So he started training with distractions and found a way to get into a ‘soft zone’ and eliminate this ‘advantage’.

Good stuff about a highly talented person that is constantly measuring himself and finding ways to improve. This is one of the best books I’ve read not only this year, but ever.

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Two Books on Building Cases

In a recent discussion, Kenn Suggs recommended the following books:

Ken’s not only a past President of AAJ, but also a helluva trial lawyer. So when he takes the time to give advice, I listen. My copies of those books just arrived from Amazon and I’ll write more about them as I read them.

Thanks for the tip, Ken.

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Frivolous Lawsuits and Frivolous Defenses

If you’re in a jurisdiction that allows voir dire (South Carolina doesn’t), here are some ways to combat the defense talking about frivoulous lawsuits:

  • Acknowledge Frivolous Lawsuits – Get them talking about them. “Who here doesn’t like frivolous lawsuits? Please raise your hand.” And then raise your hand. My client and I don’t like frivolous lawsuits, it’s taken us two years to get to trial. What makes a lawsuit frivolous? Do you think that all lawsuits are frivolous? If someone was seriously hurt do you think that would be frivolous? What would you want them to show to make it a real case? The key is to
  • Ask About Frivoulous Defenses – Here’s the key. “Do you think that only the people hurt bring frivolous lawsuits? Do you think big companies/insurance companies… sometimes file frivolous defenses? Do you think that sometimes they fight legitimate claims just so they don’t have to pay them?”

By asking about frivolous defenses, you do several things. You get the jury members thinking about defendant misconduct, plus you get on a more ‘equal footing’ with the defendant. Instead of just thinking about the McDonald’s coffee case, they’re also thinking of corporate misconduct and you have a much more fair environment.

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Be Careful of Ultimatums When Negotiating

The Cat Goes or I Do


When you are negotiating, you want to have a strong position.

However, you don’t want to put yourself in a position where you can’t change your position and don’t have room to maneuver.

You also don’t want to issue an ultimatum that you aren’t afraid to back up.

Sometimes during the negotiating, you will have to reach an impasse and have to file suit or go to trial, but you want to leave yourself an out for further negotiations.

This classified ad shows what happens when you issue an ultimatum and the other party calls your bluff. I’m not certain this is a real ad, but it looks and feels like it is.

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Good Book on Jury Decision Making: Facts Can't Speak for Themselves - Reveal the Stories that Give Facts their Meaning

I’ve been reading Facts Can't Speak for Themselves: Reveal the Stories that Give Facts their Meaning by Eric G. Oliver recently. A fascinating book on how to present information to help jurors learn and how the decision making process works. Here’s a synopsis of the book:

Legal decision makers construct their own case story version when judging a case. In fact, they reauthor their own version of the case story presented to them several times before arriving at the one they use to decide the case.

Their individual stories influence the verdict as much as individual backgrounds and beliefs, or the attorney’s case presentation in court. This groundbreaking book offers straightforward steps for trial professionals to identify and use these stories to refine the most compelling presentation for listeners to judge. Learn:

  • How and why legal decision makers construct their own case stories and use them to decide a case
  • The importance of crafting and communicating a case to decision makers as a story and why it can be the most direct and influential way to address decision makers
  • Which focus groups best reveal the range of stories versions listeners can build from your case
  • How to run voir dire like focus groups and focus groups like voir dire
  • Why you should never ask focus group members which side in a case they like
  • Why you should think twice before ever again asking a ‘why’ question in voir dire or focus groups
  • How to take full advantage of the only four channels available to deliver any legal case Sample Chapter Contents
  • The ‘Problem’ with Focus Groups
  • Packaging the Facts: Theme, Scope, Point-of-View, and Sequence
  • The Process of Story Growth
  • Decision Making Biases or Heuristics
  • Hot Topics and ‘Silver Bullets’
  • Theme and Story Elements
  • Three sample opening statement sections
  • Appendix includes printable focus group polling forms

It’s good stuff. I’ll write more as I get further through the book.

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Conducting Your Own Focus Groups

A friend recently asked me some questions concerning in-house focus groups. Rather than send him an e-mail back, I thought it would make a good post. Focus groups. What is the best way to conduct them? Ideally, you would have a group of about 20–25 people, have them listen and respond to your presentation, then break them up in 3 groups of six people (2 in favor, 2 neutral and 2 against) and dismiss the rest of them. Then you would repeat the process and go through 3–5 iterations until you had perfected your case and seen every possible juror outcome from the very best to the very worst and everything in between. However, most cases can’t support the $15,000 – $25,000 cost of doing the full blown focus groups.

We do most of our focus groups in house for about $500. They cost about the same as a deposition, take about the same amount of time to prepare for and give you lots of information. I learned how to do  focus groups from David Ball’s aptly named book  How to Do Your Own Focus Groups: A Guide for Trial Attorneys. Here are his questions:

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Ease the Juror's Worries About Determining Damages

I recently  learned of a website for defense trial consultants Trial Behavior Consulting. They have a number of articles and presentations they’ve given. Most of the information matches what I already know and shows how to exploit the information from the defense side. Sarah Murray identifies some concerns that jury members have in her article Strategies for Minimizing Damages:

  • Do we really have to make the decision about money?
  • How can we decide what to award?
  • Won’t the judge determine the amount?
  • Won’t you give us guidelines?
  • How can I possibly put a value on a human life?

By helping the jurors determine how to come to an amount, you will be easing their anxieties and helping to get a larger verdict. Let the jury know that you will show them how to calculate and come up with a number. Tell them that the amount of damages should equal the amount of harm.

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Beware of Generational Differences in Jurors

We all know that major events can effect a generation. Think the Depression, World War II and the Vietnam War. But much smaller events can help shape attitudes and thought processes. I’m 41 years old and was born in 1964. Watergate was on television when I was about 10 years old. I wasn’t old enough to really  know what was going on, other than it was something major that the government had done wrong and that it was always on television. Couple that with my father growing up on a farm in the flatlands of Texas, pretty much guaranteed that I would be a plaintiff’s attorney.

When I was in law school, I was talking to someone that was just 5 years younger than me. He ‘came of age’ during the malaise of the Carter years and then the Reagan years. He had a totally different attitude towards government. Rather than a healthy skepticism towards government, he believed wholeheartedly in governmental triumphalism (with a conservative bent of course).

Over the weekend, at the STLA Retreat, Howard Nations gave his excellent presentation on generational attitudes of Generation X and Generation Y jurors. With the top end of Generation X hitting 40 years old, nationwide half of your jurors will be Gen X or Gen Y jurors.

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A Tale of Two Penguins and a Story of Worldviews

One of the surprise hits in movie theaters this summer is March of the Penguins. It’s a fantastic documentary showing the penguins mating rituals, including a 70 mile trek through one of the world’s most hostile environments to find a mate. If you haven’t seen it, it’s definitely worth checking out. But what struck me about this movie was two opinion pieces that talked about the movie.

George Will of the Washington Post uses the penguins odyssey to question Intelligent Design:

"March of the Penguins" raises this question: If an Intelligent Designer designed nature, why did it decide to make breeding so tedious for those penguins? …  It is so grand that nothing is gained by dragging an Intelligent Designer into the picture for praise. Or blame.

Maggie Gallagher discussing the same movie, sees the hand of God:

I don't know Jordan Roberts' agenda, religious or otherwise, but it is hard not to see the theological overtones in the movie he remade. Beauty, goodness, love and devotion are all part of nature, built into the DNA of the universe. Even in the harshest place on the Earth (like 21st-century America?), love will not only endure, it will triumph.

Same movie. 100% opposite opinions. What was the difference? The writer’s worldview. They saw some spectacular footage and superimposed the video onto the worldview they already had. It makes you wonder when you tell a jury something, what spin their worldview is putting on it.

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Get the Jury Used to Preponderance of the Evidence BEFORE Closing Arguments

Preponderance of the evidence. Is it more likely than not. On a 50/50 basis, does it tip the scale one way or another. That’s a much better standard than the criminal standard of beyond a reasonable doubt. But how do you get the jurors to decide a case on the preponderance of the evidence?

In general, people don’t think that way and they don’t decide cases that way.

David Ball suggests working the standard throughout the trial, from the Opening, through questioning and into the Closing. Here’s how it works: Continue Reading Posted inDecision Making, Trial Techniques |Comments (0) |Permalink

Thoughts on Juries

Tom Peters responds to the Michael Jackson verdict.

None seemed enamored with Jackson in the least. But they treated him as any defendant should be treated, and came to what they collectively thought was the appropriate decision.

Especially interesting are some of the reader comments on what they believe of the jury system. I think while there is surface cynicism, most people have a deep respect for juries.

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Book Review: Neuro-Linguistic Programming for Dummies

I love the Dummies series of books. Their specialty is breaking a topic down, highlighting the important parts, pulling out a few tips and throwing in a bit of humor. I have 23 Dummies books, everything from software programs, accounting, fitness, Spanish and even a Sailing for Dummies book. Here is my previous post describing NLP.

A basic question of Neuro-Linguistic Programming is “If you keep doing the same thing you’ve always done, how do you expect to get different results?”  The concept is to define the results you want, then take a look at your behavior and see if your behavior moves you closer to your desired results.

If you were looking for an introduction to NLP, Neuro-Linguistic Programming for Dummies is a great book. It describes the four pillars of NLP, how to change beliefs, the logical levels of NLP, the difference between the conscious and unconscious mind, creating rapport, determining and achieving outcome orientation, anchoring, discovering meta-programs and storytelling to reach the unconscious.

What can you use NLP for?

  • Trial Skills: Negotiating win-win solutions, creating powerful presentations, and connecting to your audience.
  • Non-Trial Skills: Managing personal and professional relationships, Developing yourself, managing your time and precious resources, being coached to success, increasing your health, and getting the job you really want.

The best part? The stuff really works.

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Framing a Worldview at Trial

Robert Spanner has a great article entitled Framing a Worldview at Trial in this month’s Tips from the Trenches on the online publication of the ABA’s litigation section. Robert talks about how important framing and a theme is at the time of trial.

But cognitive research—and experience—teaches that it is actually a mistake to refer to the opponent's theme, to use the opponent's terminology—even in the most scornful adjectives – and to remind the jury of the evidence supporting the opponent's case, because every time that happens it reinforces the opponent's account of what the case is about, and defines the issues in the case as the issues that the opponent has selected to try. …

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How Juries Think About Punitive Damages

The lawyers at Quinn, Emanuel (there’s no individual byline have written a good article on How Juries Think About Punitive Damages -The Empirical Evidence. One of the money quotes:

The studies also revealed an "anchor effect." The "anchor effect" refers to the tendency of juries to latch onto any numbers presented to them as the "anchors" for their calculations when they receive little or no guidance from a court in setting dollar awards. As a result, plaintiff 's attorneys who ask for a higher figure typically receive a larger award. One study presented cases that were identical except for plaintiff 's closing argument. One requested punitive damages of $15 to $50 million while the other requested a range of $50 to $150 million. The corresponding awards averaged $20 and $52 million, respectively.

That goes along with what I was talking about with the lawyer’s suggestion of an award being a high anchor for the jury. Thanks to Evan Schaeffer at the Illinois Trial Practice Weblog for pointing out the article.

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Should You Suggest a Large Verdict Award to the Jury?

Credibility is the single most important tool a plaintiff's lawyer has. Once you lose that, it's all over but the crying.

But, lawyers do not lose credibility because they ask for a large verdict. People want that high figure to use as an anchor of which they will give a percentage of that number. The reason a lawyer does not lose credibility over this is that the jury expects the plaintiff’s attorney to come in too high, the defendant to come in too low and that it is their job to pick an appropriate number ‘somewhere in the middle’.

[Note: This entry was edited. I incorrectly wrote about David Ball's opinions based on my notes from his Damages seminar last fall. David wrote to correct me on that and I've updated this post accordingly.]

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Telling the Story and Knowing What You're Selling

Seth Godin has a new book, All Marketers Are Liars : The Power of Telling Authentic Stories in a Low-Trust World coming out May 23, 2005. The book appears that it will focus on the stories behind the ads and marketing campaigns we see every day.

For example, Seth talks about Evian bottled water is not just a drink of water, it is more than just water. You’re also buying the story It's not just water, but water from the French Alps.  It's superb water.  Beyond all other waters.  I feel smarter.  I look better.  You've lifted me out of my mundane, middle-class existence…”

Seth has a post concerning the way lawyers approach trying a case:

Smart lawyers win cases where the facts don't back them up. That's because smart lawyers know how to tell a story that people will want to believe. It's a story that makes a juror feel competent and ethical and satisfied. It's a story that has very little to do with the facts and a lot to do with the lies we insist on.

I think most marketers spend way too much time worrying about their version of the truth and not enough time be authentic and telling stories about what they're up to.

I like Seth’s point, but will disagree that telling an authentic story can be done regardless of the facts. You have to have facts to tell an authentic story. After the facts, the story you tell is important. You can read Seth’s entertaining blog here.


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Use the Contrast Principle to Get Larger Jury Awards for Your Client

I’m currently reading Influence: The Psychology of Persuasion by Robert Cialdini. Robert talks about the contrast principle which is well known in the field of psychophysics.  The contrast principle is that people’s perceptions are altered by the sequence that information is related to them. Here are some examples:

Several years ago, my  wife asked me for a cat. We already had two dogs and I don’t like cats. I said no. She then asked for a baby. I said “how about a cat?” That’s the contrast principle at work.

Another example of the contrast principle is that people consistently rate women as less attractive  if they have just looked at a picture of a model. The key here is that the woman’s attractiveness has not changed, but people’s perception changed based on what preceded it. Also, people are far more accepting of high priced merchandise if they had just been offered a much higher priced item. Smart salesmen know always to try the most expensive item first. This is the contrast principle at work. A smart lawyer will always ask for more than he wants. Continue Reading Posted inDecision Making |Comments (1) |Permalink

A Word About Lawyer Civility and Points of View

A few weeks ago I had a workers comp case come up for hearing. It involved a painter that had fallen when a makeshift scaffolding gave way. My client broke one leg and shattered the other. He needed reconstructive surgery and spent about 7 days in the hospital. The employer was unemployed and we had to file against the workers comp insurance of the subcontractor who had hired my client’s employer. In workers comp talk this is an upstream or statutory employer. Pretty standard stuff. But the case was denied. Because the subcontractor contended that he hadn’t hired the guy. The law is crystal clear on this, but it was still denied.

It took us about 7 months to get to a hearing. During this time, my client did not have any doctor’s bills paid and was not getting a paycheck. Well, he first lost his apartment and lived with one relative after another, he then lost his car. After about 4–5 months, his relatives (primarily their spouses) got tired of him sleeping on the couch and one by one their doors started closing. Eventually, he was living in a homeless shelter. All because the insurance company denied his claim. Continue Reading Posted inDecision Making, Practice Management |Comments (0) |Permalink

What is Neuro Linguistic Programming and What Does it Have to Do with Trial Lawyers?

What is Neuro Linguistic Programming? According to

NLP, or Neuro Linguistic Programming, is the art and science that can be described in a nutshell, as an attitude and a methodology that leaves behind a trail of techniques.

First, the attitude of NLP is one of curiosity and experimentation. Next, the methodology is modeling, which is the process of duplicating excellent behavior. Another person's behavior can be duplicated by studying what that person does inside their head (language, filters, programs, etc.) to produce results.

Neuro Linguistic Programming can be used to be more convincing to a jury, run a better office and even be more successful and happier. What’s not to like about that? I’ve been hearing about NLP for over 20 years (since interrogation school in 1983) and have finally been getting into it. It can truly make a difference at trial and we’ll be discussing NLP in more detail as we go along. It’s not as funky and new agey as it first sounds.

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Using Cognitive Science to Frame Your Facts

I’ve been reading a goodly amount about George Lakoff and cognitive science. If you haven’t been following cognitive science, George explains it below:

One of the fundamental findings of cognitive science is that people think in terms of frames and metaphors -- conceptual structures like those we have been describing. The frames are in the synapses of our brains -- physically present in the form of neural circuitry. When the facts don't fit the frames, the frames are kept and the facts ignored.

It is a common folk theory of progressives that "The facts will set you free!" If only you can get all the facts out there in the public eye, then every rational person will reach the right conclusion. It is a vain hope. Human brains just don't work that way. Framing matters. Frames once entrenched are hard to dispel.

That’s why issues like sequencing, as Greg Cusimano suggests are so important. Cognitive science is a matter of breaking down and proving the power of story telling that we trial lawyers have known of all along.

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Understanding Pattern Recognition and Storylines

On his weblog Scott Rosenberg  talks about pattern recognition and how people and reporters tend to follow an established story line. A few excerpts:

Our minds fall into existing patterns like wheels in a rut; we "see" words spelled right even when they're misspelled, and we "see" events unfold according to the sequence we expect, even when the information parading across our eyeballs tells us otherwise.

For an astonishingly high percentage of professional journalists, the news they recognize is the news that fits the pattern they have already selected as the template for their coverage.

 Hmmm…. ‘according to the sequence we expect’… and not what actually happens. The point of Scott’s post was to open up the awareness and spend the time and effort to look for new patterns emerging. As trial lawyers, this just highlights how people construct stories (pattern recognition) and how we should make certain that our themes, evidence and story lines fall into the jurors existing patterns ‘like wheels in a rut’ as Scott so eloquently puts it.

Don’t fight how people think, understand it and use the thought process to your client’s advantage. Scott’s whole article is worth a read.

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Blink : The Power of Thinking Without Thinking

Blink by Malcolm Gladwell talks about the power of snap decisions and how nearly instantaneous decisions can are as correct as calculated decisions backed with extensive information.

Drawing on neuroscience and psychology, Malcolm discusses how the conscious mind is only a small part of our decision making process. Understanding the way jurors make decisions is critical.

I'll write more about the book later, but in the meantime Slate has a fascinating conversation between Malcolm and James Surowiecki, the author of The Wisdom of Crowds.

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