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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Myrtle Beach Lawyer Returns from AAJ Ultimate Case Workshop

I just got back (well a few weeks ago), from AAJ’s Ultimate Case Workshop in Charlotte, NC. Wow, what a great experience. I can’t talk about specifics, but there were a few things I got the okay to share and I can share some of my general impressions from the workshop.

After some lectures from some of the top people in the country. Eric Oliver author of Facts Don’t Speak for Themselves, Howard Nations, Paul Skoptur, Phil Miller, Robert Bailey, plus a host of others, we were broken up into groups. My group had 3 other cases in it. We all had premises liability cases.

The rest of the weekend was spent reviewing the cases, helping each other with the cases and focus groups on the cases. Each case got two focus groups. Altogether we sat through 8 focus groups on similar (or at least moderately similar) cases. Plus lots of great advice and pushing and pulling on the cases. Great, great experience.

There were a number of people that were there for their third or fourth time. I will go next year with a different case. Oh, and in addition to the instructors all of the lawyers there were very talented, very nice and I got a lot from talking to them as well.

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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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How to Challenge an Expert with Excellent Credentials

In DesKuys v. Berkowitz, the plaintiff received a $1 Million Dollar Verdict.

Bernard Smalley obtained a million dollar verdict after the defense lawyer argued that his expert witness, with an 86-page resume, must be believed.

In rebuttal, Bernie told the jury that Richard Nixon had a longer resume, and he lied. Ouch.

The moral of the story is that a long resume doesn’t always equal credibility.

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Try a Medical Mis-Management Case

I have a number of notes from seminars that I’ve attended the past year and I don’t know where the information came from or who said it. It’s good stuff, so I  am going to post it without attribution. Please let me know if you’re the one the information came from and I’ll change the post to reflect that.

Medical malpractice cases are becoming harder and harder to win. Doctors have done a good job of publicizing the ‘problems’ with medical malpractice, how their insurance is too high and how they’re being run out of the state because of the bad environment.

Of course, if you go to the doctor’s parking lot of any hospital, you’ll see a lot of BMW’s, Lexus’s and Mercedes’. You won’t see a lot of 1976 Ford Pinto’s, or 1982 Taurus’. And of course, if it is so bad in this state, they don’t say where it is better for the doctor to go to. Also, when all of the doctors are being run out of the state, the State Medical Board shows more and more doctos coming into the state.

Regardless of the facts, the ideas are still in the head of the jury pool.

Try calling your case a case of medical mis-management, instead of medical malpractice. The idea of malpractice in the jury’s mind means that the doctor was wrong. That he was intentionally wrong. That the Plaintiff is blaiming the doctor for being wrong. That the jury has to blame the doctor for being wrong. That the doctor was a bad doctor.

Juries are reluctant to do that. Instead, call it a case of medical mis-management. That the doctor made an error and didn’t manage the case properly.

 Everyone, has seen good people mis-manage things at times. It’s a way for the jury to find for the Plaintiff wihout blaming the doctor as much.

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Guest Post on Explaining Money Damages to the Jury

A while ago, I wrote about showing damages to the jury - why are they awarding money?.  A standard defense tactic is to complain that the injured party is greedy. "A terrible accident happened and they got injured. Now what do they do?? Come here and ask for money. Money." The defense makes it sound dirty as if that wasn’t the only remedy available.

Michael Atwater wrote a response on how he deals with this standard tactic and explains to the jury why we are asking for money. Take it away Michael:

One of the things that I do in my closing is to first explain the damages and ask the jury for a verdict which fairly compensates my client. 

Then I wait for the defense attorney to predictably tell the jury that my client is there looking for money. 

When I get back up, I walk over to the jury box and pick up the ambulance bill.  I tell the jury that a few days after the accident, while my client was at home recuperating, his wife (or another family member) brought in the mail from the mailbox.  As my client is there perusing the mail, he sees a letter from York County EMS. 

He recalls that they are the ones who initially treated him at the scene and transported him to the hospital from the accident which was caused by the defendant.  He open the envelope and unfolds the paper inside.  And what do you think that the EMS folks are seeking from my client as a result of his accident?...........MONEY! 

I repeat this with the ER bill and the subsequent bills. 

Then I explain to the jury that they must award my client the amount of these bills because he legally owes them and will be left holding the bag for the defendant's actions if the jury doesn't award this money.  I go on to explain that this money is owed to and will be paid to the medical providers. 

I tell the jury that if they only award an amount equal to the medical bills (the defendant many times concedes that the Plaintiff should get the ER bill), then they have given my client NOTHING.

I re-explain the issues of non-economic damages and again ask the jury for a fair verdict (with a suggestion of what would be fair).

I have had a great deal of success with this approach.

Thanks for the thoughts Mike. I think that’s helpful and a good idea.


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Do Your Job as a Lawyer

Ouch. That’s a harsh headline. But if you don’t do your job, don’t be surprised if the jury doesn’t do your job for you. Here’s what I mean.

  • If you don’t care about your client, don’t be surprised if the jury doesn’t care about your client and gives you a low verdict.
  • If you can’t be bothered to dig through all of the facts and figure out what the case is really about, then don’t be surprised if the jury doesn’t figure it out either. You’re the attorney, with lots of time to figure the case out. If you can’t boil it down to the basics, don’t expect someone to do your job for you.
  • If you can’t find the human drama and the storyline in what your client has gone through, don’t be surprised if the jury doesn’t either.

It takes a lot of work to boil things down to the basics. It’s easy to write a 20 page appellate brief. A two and a half page brief takes about ten times as long to write. Of course, which one is more effective? The shorter one of course.

A number of years ago, I was doing a zoning appeal. The attorney handling the case in front of me went on for over 20 minutes. The zoning board told him that he made a very convincing argument and they were willing to vote for him, but they were unable to tell what it was that he wanted them to do. Ouch.

It’s our job to present as simple of a picture as possible. It’s also our job to present as human a picture as possible. It’s not a soft-tissue case. His name is Tony and this is how the wreck has effected his life…

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Telling a Story in Opening Statement Through the Eyes of A Truck

My good friend Steve Moskos from Charleston, just got a great verdict in Manning, South Carolina. It was a case where a dealership took in a rebuilt wreck and even though they knew about the substantial damage to the truck, sold the pick up and failed to disclose the previous damage. In addition to trying a good case, Steve presented his opening statement from the first person perspective of the damaged truck. Here is what Steve has to say:

In my opening, I told the story from the point of view of the truck.  I was a bit nervous about whether it would come off okay, but it worked pretty good.  I used things like "I was built Ford tough" and " a deer ran out in front of me.  The driver jerked the wheel.  I heard something snap.  I lost control I rolled on to my side.  I heard glass smashing.  I felt the pavement tear holes in my metal as I slid down the asphalt." …

 To say the least, the jury stayed awake.  It was a refreshing change.

What a great idea. I’m a big fan of taking the facts and telling a story. What better way to tell a story of the wreck, than through the eyes of the truck that experienced it. Thanks for sharing that idea with us and congratulations on your client’s verdict.

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Start Your Case with Jury Instructions

One of my favorite quotes in life is from Alice in Wonderland by Lewis Carroll:

Alice: Would you tell me, please, which way I ought to go from here?
Cheshire  Cat: That depends a good deal on where you want to get to
Alice: I don't much care where.
Cheshire Cat: Then it doesn't much matter which way you go.

You have to know where you’re going, to make decisions about what the right direction is.

The very last thing that jurors hear before they begin their deliberation are the jury instructions. So it’s important to build the case around the jury instructions. I like to draft the jury instructions before I draft the complaint. Of course they will change or be modified as new facts emerge, but it helps to have a guidepost. I review the jury instructions before:

  • Drafting the Complaint
  • Preparing Themes for the Case
  • Analyzing the Facts of the Case
  • Taking Depositions
  • Answering Discovery Requests
  • Preparing for Trial

If you know where you’re going, the decisions on how to get there become much easier.

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Be Specific About Your Client and His Injuries

According to studies, 66% of the people support having caps on non-economic damages when no other information is provided. However, 55% of the people opposed putting an artificial cap on non-economic damages. And when discussing children, senior citizens or stay at-home moms who the caps would have the most effect on.

So there is wide support for changing the system or ‘tort reform’, but it’s a shallow support that doesn’t run deep. So the moral of the story? Tell the jury about your client. Tell them about his injuries and how it affects his life.

Make sure that the jury understands the human aspects and that the injury happened to a person and we’re not talking about a back surgery.

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Rules of the Road: Great New Trial Book

Every now and then, a book comes along that is better than good and just spot on terrific. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability is one of them. I was hearing good things about this book and saw this plug by David Ball:

Rules of the Road does not belong on your bookshelf or your desk; it belongs in your mind. Get it there before you even think about your next trial. It contains two special joys: It teaches something usable on almost every page, and what it teaches is dead-on right.

The book talks about the main defenses that defense lawyers use to defeat otherwise good cases:

  • Complexity
  • Confusion
  • Ambiguity

I can attest to that. I’ve been on the receiving end more than once. The book then talks about how to defeat the defenses of complexity, confusion and ambiguity from the client intake, through discovery and through the trial. I haven’t finished the book yet, but so far have been enjoying it immensely.

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Great Legal Quotes on Justice

Janabeth Taylor pointed me to some quotes on justice. These seem more applicable to a criminal law case, but they were still entertaining. Some of the quotes are listed below:

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ~Oliver Wendell Holmes, Jr., The Common Law

There is no such thing as justice - in or out of court. ~Clarence Darrow, 1936

Justice is open to everyone in the same way as the Ritz Hotel. ~Judge Sturgess

People who love sausage and people who believe in justice should never watch either of them being made. ~Otto Bismark

If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law. ~Lysander Spooner, Trial by Jury

This is a court of law, young man, not a court of justice. ~Oliver Wendell Holmes, Jr.

The state calls its own violence law, but that of the individual crime. ~Max Stirner, The Ego and His Own

The law condemns and punishes only actions within certain definite and narrow limits; it thereby justifies, in a way, all similar actions that lie outside those limits. ~Leo Tolstoy, What I Believe

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Use Junior High Students as Informal Sounding Boards

David Ball gives the tip of using junior high students to explain your case. And not the ‘A’ students either. Use your run of the mill, average ‘C’ student. If you can explain your case to them and they get it, then odds are strong you have simplified it enough for a jury.

If you can’t be bothered to do the work to figure out what your case is about, don’t be surprised if the jury doesn’t do your job for you. The simpler you make it, the better.

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Ask the Jury for a Socially Conscious Verdict in Closing Arguments

I’m looking at the notes in my computer and I still have a lot of notes from conventions from the summer, fall and winter of 2005 and we’re fast moving into the Spring of 2006. I know that the world of blogs likes to be as up to the minute as possible, but I’ll turn the notes into blog posts if it’s good and useful info even if  it’s a little late. Here’s a tip from Pete Law, from Southern Trial Lawyer’s Association Fall Retreat.

Peter asks the jury for a ‘socially conscious’ verdict, or in other words a reasonable verdict. He tells the jury what he’s going to prove and asks for a socially conscious verdict that meets with community standards. Saying “We don’t want a reckless award, it’s not good for him, it’s not good for us, it’s not good for the civil system and it’s not good for the community. We do want a fair award. That’s the number you should give. Don’t give more, don’t give less.”

And then you have to justify the number you asked for. But let the jury know that you don’t want a crazy number, just a socially conscious verdict.

Good tip. Thanks for the advice Peter.

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David Ball Updates his Book on Damages

I was bopping around Amazon, looking for new trial books and found that David Ball has updated his book on damages. In fact, it is the essential update. You can get it here: David Ball on Damages: The Essential Update, A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases.

David has updated it to deal with the poisoned atmosphere after all of the corporate welfare legislation that we have mistakenly allowed to be called ‘tort reform’. One of the things that I really like about this book is that it shows lawyers ways to give their favorable jurors arguments to use and win discussions with non-favorable jurors in the jury room.

This squares with neuro-linguistic programming principles that when people internalize arguments, they believe them much more than when they are just told them. In a simpler era, that would be ‘Show. Don’t tell.” It’s a great update to an already great book. This is one of a handful of books that I read and reference so much that I buy two copies, one for the house and one for the office.

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Richard Jones on Trying Inadequate Security Cases

I’m still getting caught up on posting notes from previous seminars. At the Southern Trial Lawyers Fall Retreat, Richard Jones a lawyer from Atlanta who specializes in inadequate security cases gave us an update on these cases which have become immeasurably harder to try in the age of ‘tort reform’.

The problem you have to contend with in inadequate security cases is that the management had actual knowledge of criminal activity on their premsies and did nothing. However, regardless of policy management never makes reports of any criminal complaints in the area. So what do you do?

Beat the bushes.  Go up and down the hallways and talk to the people. Talk to the people pre-suit. You have permission to be there (from client/tenant). Get the police reports for the apartment complex. Talk to the police officers. Talk to the victims. But it’s important to get out there fast before the witnesses move away or otherwise disappear. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Great Closing Argument to show that Client Only Gets One Trial

We know to tell the jury that our client only has one trial and that they can’t come back and ask for more. That this is their one day in court. The horrible cliche, ‘one bite at the apple’. As if that ever convinced a juror. But how do you convince the jury of the importance of their award? This is the argument that Peter Law gave at the Southern Trial Lawyer’s Fall Retreat.

The phone call.

Why is your decision so important? Why is it so significant?

I want you to imagine that 15 years from now, that I get a phone call from my client. He calls me and says “The verdict is not enough. I’m having medical problems and there’s no money for it. I need some more money. Get that jury back together, they didn’t consider this and tell them they didn’t give me enough. It isn’t fair. I want my leg.”  And I’ll have to tell him “We can’t get them together. Their decision is final. That’s it. It’s binding. What you have is what you got.”

So he hangs up the phone and calls the judge in the case. The judge will have tell him "I’m sorry. I told them to be fair and that their verdict is final. That their decision would have to last your whole life.”

So he calls the defense attorney.  And the defense attorney tells him “I’ll tell you just like I  did in court. It’s too bad you got hurt, but it’s your fault.” Then the defense attorney hangs up on him.

Your verdict is final and has to stand the test of time.

What a great way to highlight the finality of their decision. Obviously, this is a stripped down version, you should add your own details to make it more dramatic and fit your style.

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Use Simple Words When Talking to a Jury

Of course, this is pounded into us repeatedly. Talk like a person and not a lawyer. Don’t use a big word when a small word will do. It is better to get your themes from People magazine and the Enquirer than from Plato and Charles Dickens. It doesn’t matter how fancy you are if no one knows what you’re talking about. I was reminded about that when I ran across this great quote from David Ogilvy, the advertising giant of Madison Avenue:

I once used the word OBSOLETE in a headline, only to discover that 43 per cent of housewives had no idea what it meant. In another headline, I used the word INEFFABLE, only to discover that I didn't know what it meant myself.

Yep. Keep it simple. Keep it short.

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Dealing with Preponderance of the Evidence in Closing Arguments

More tips from David Ball in dealing with preponderance of  the evidence in closing arguments:

“What that means is more likely than not. [Use the hands, the visual is more important to the juror than the words].

You’re allowed to have doubt. You can have all the doubts on both sides, as long as when you come down to it, you think it’s more likely than not. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Beware of Tort Reform's Effect on Jurors

Following up on Howard Nations’ presentation at the Southern Trial Lawyer’s Fall Retreat. Howard talked about how we were two steps behind before we uttered our first words. When the country is at war in two countries, bankruptcies are at record levels and the price is over $3 a gallon and the President gets on the television and tell people that trial lawyers are the biggest problem facing this country, people believe it.

When so many states are changing the laws and basic ground rules of the civil justice system and calling it tort reform, people believe it.

This has a profound effect on potential jurors. Just the fact that state legislators are enacting tort reform means that there was a problem that had to be fixed. Regardless of the facts. I was there at the statehouse (although not nearly as much as Fayrell Furr, John Nichols, Preston McDaniel and our wonderful staff at SCTLA) and the legislators admitted that the facts were on our side, that there was no huge litigation explosion, but that the business community was demanding changes.  Those of us who have been watching have seen a concerted and very successful campaign by the U.S. Chamber of Commerce over the past 25 years that has been based largely on anecdotal information and fiction.

There has been tort reform. There is a problem. Trial lawyers are the problem. That is the attitude that jurors are bringing to the courthouse. We need to understand that and address that issue or else we have lost before we start. And we sure as heck better not fall into the stereotypical ‘trial lawyer’ cliche/stereotype of being fast and loose with the facts or else we’re sunk.

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Telling Stories to Win the Jury

Marketing guru Seth Godin tells how storytelling is essential to winning over the jury:

I am from Brighton in the UK and read your blog on a regular basis. Last night I saw the concluding episode of the Michael Peterson 'Death on the Staircase' trial in the US (Durham). This morning I read your 'Liar's Blog' and it got me thinking. It seems to me that the prosecution told stories that matched the worldview of the jury. The defence however seemed to focus on the facts. Who won? The story tellers! …

Why can't a judge assess whether a lawyer is 'marketing' to the jury? It seems that the media are driving lawyers toward a marketing approach to justice. To focus purely on facts is to risk losing the case. All a lawyer has to do is understand the prevailing worldview of the jury (even select a jury with the appropriate worldview) and then tell the right story. Frightening!

An interesting post, that catches the point, but also misses it. Storytelling is important to help people learn and understand the facts. However at least from a Plaintiff’s perspective, it doesn’t matter how much you appeal to people’s world views and how powerful a story you have, if the facts aren’t on your side.

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The Jurors Duty is to Tell the Truth, The Media's Duty is to Sell Papers from Tom Mesereau's Speech

I’m going to do a series of seven posts on Tom Mesereau’s speech at our Summer Convention. I had never met Tom before last week. He spent the entire Convention with us, was very friendly and easy to talk to. I was very impressed by his generosity and willing to talk to us. I took good notes, but not exact notes and will be paraphrasing in these posts. So the thoughts are Tom’s, but the words are mine. In other words, don’t blame Tom if I’m less diplomatic than him.

After his talk, the newspapers ran the story along the lines of ‘Media gets it Wrong’. Actually Tom started off by contrasting the different responsibilities of the jury and the media. The jury has a responsibility and an obligation to listen to the evidence and follow the judge’s instructions on what the law is. Based on that, the jury is supposed to determine the truth. They listen to their gut, they pay attention to the witnesses and the facts, they discuss and argue with each other and come to the truth. That is the jury’s obligation and one they take seriously. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Focus the Jury on the Harms and Losses

Jurors have been bombarded with the images of ‘tort reform’. They have been bombarded with stories of how juries have gone wild. When sitting on the jury, they anxiously glance around to see who all of the crazy bastards are. Not only do they not trust us as attorneys, they are also distrustful of each other.

According to David Ball, we have to change our tactics to survive. He suggests building the theme that the only things the jury is allowed to consider is the level of harm and the level of losses.

But it’s not enough to throw that out in closing arguments, you have to build it from the beginning. From voir dire, through your opening statement, direct and cross examinations as well. For a way on how to include the information on your opening statement, look here.


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Tell Jurors Why You're Showing Them Damages

David Ball says that sometimes jurors get upset at damages witnesses saying “Why are they telling me that the guy had such a hard time?? They’re just trying to play on my sympathy and tug on my heart strings.” and will rebel against that. The solution? Tell the jury why you are showing them this information. Start with your opening statement. Let the jury know why you are going to show them the damages information.

“We’re going to be showing you what Joe went through. We won’t be doing this to get your sympathy, the time for sympathy is long past, we are here for compensation. We expect that the most important job you have on the jury is to decide how much money this case is worth. The most important job will be to determine the level of losses and the levels of harms that Joe has. We’re giving you that information so you can determine that.”

Let the jury know that:

  1. You are NOT attempting to tug at the heart strings.
  2. Damages are central to the case. That they need this information, it’s important to the case, important to their decision and they it to do their job.

I agree with David on this. I remember a Budweiser commercial at the last Super Bowl where it showed a soldier coming home from overseas being greeted by his family. It was very warm and touching, but had nothing to do with beer. Being retired military it hit a nerve that they would use the sacrifices of young soldiers and their families to sell beer. It seemed gratuitous and out of placeand it angered me.

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What Did the Defendant Do Wrong?

When I have to file suit, I sit down and do a discovery plan and map out the case. I gather all of the materials I have and put them in one room. I’m focused on only two things. What did the defendant do wrong and what are my clients damages. The damages can be worked up and that’s not that hard. But in working with the liability issues, I think about ‘What Did the Defendant Do Wrong?” 

The Defendant wasn’t negligent, he was changing radio stations when he knew he was approaching an intersection.

We did a trip and fall last year at an outdoor resort that had a board walk. The boards on the board walk were nailed down and not screwed down. What did the Defendant do wrong? He was too cheap to buy screws that were going to hold and used nails instead.

I went to the local sign shop and had a 12 foot vinyl banner (complete with brass grommet for easy hanging and removal) that I hang  from the conference room wall during my planning sessions. The banner says “What Did the Defendant Do Wrong?”. I also use the banner in the final trial planning stages when pruning away all of the excess information.

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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. …

Continue Reading Posted inDecision Making, Themes / Arguments, Trial Techniques |Comments (3) |Permalink

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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Building Block Approach to Closing Arguments

Over the next year, I want to take a stack of closing argument transcripts and break them down to their basic components. There are certain items that have to be argued in every closing argument. An example of some are:

  • Burden of Proof  – Only a preponderance of the evidence
  • Empowering the jury – It’s their decision and not anyone else’s
  • Personal Responsibility – That the defendant needs to take responsibility for his own actions
  • Only Chance for Compensation – That the client only gets one trial and can’t come back for more money if there’s not enough.
  • Intangible damages – Descriptions on how to make intangible damages real.
  • Lost Wages – While it seems like a lot, it has to last a lifetime
  • Life care plan – While it seems like a lot, it has to last a lifetime

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You Can't Push String

I was watching the SC Senate debate on gutting medical malpractice (I refuse to use the term ‘reform’) and Senator Land was doing an excellent job of rebutting the need to limit medical malpractice cases. His argument was that the price of insurance was the cost of doing business, but if the doctors need some help, let’s give them some help. But not on the backs of the folks most seriously injured by doctors. Simple. Common sense.

Senator Land was saying (and I’m paraphrasing from memory) “Have you ever tried to push a string? It doesn’t work. No matter how hard you try” and he used his hands showing a piece of straightened string and then made a pushing motion, showing the string bunching up. But it was a good simple way to say, regardless of how good the cause is, the solution just won’t work. I don’t know if I’m doing the argument justice in type, but it was very effective in person.

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Showing Damages to the Jury - Why are they Awarding Money?

A standard defense tactic is to complain that the injured party is greedy. "A terrible accident happened and they got injured. Now what do they do?? Come here and ask for money. Money."

Ummm.... The last time I checked, that was the only relief available to us for our client (other than declaratory judgment actions). The defense works hard to de-personalize the damages and make it a monetary issue.

Our task is to show what the jury verdict is really going for, and the answer isn't money, it's to make the injured person whole. To return the injured person to as near a position as they were before the injury.

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Book Review: David Ball on Damages

If I could only have one book on my shelf, this would be it. David Ball on Damages: A Plaintiff's Attorney's Guide for Personal Injury a nd Wrongful Death Cases has changed the way I try cases. David tells us that cases are about what they spend their time on. For example, you can't spend three days talking about liability and then say "Oh yeah. My client wants some money too." He suggests spending as much, if not much more time on damages than liability. He also suggests weaving damages witnesses throughout the entire case. Don't leave them for the end.

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Using a Standard Theme of Corporate Greed

In his great article on Overcoming Juror Bias Howard Nations talks about fitting a standard theme of corporate greed into your case:

"A corporation has no heart, it has no soul, it has no nerve center, it has only bank accounts. Corporations exists solely to produce profits and converse only in the language of accounting. But this corporation must receive the message that the citizens of Texas will not tolerate corporate greed over consumer safety. As jurors in this case, you have the opportunity to send that crucial message to the corporation in this case."

The entire article is long, but worth the read.

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