Reviewed by Nicole Gainey of Gainey Law, PLLC
Originally published in the June 2022 edition of Trial News a monthly publication from the Washington State Association for Justice
Damages Evolving is the latest in a line of books by David Ball on Damages. Structurally, Damages Evolving is similar to the earlier Damages books. It is laid out in three parts: "Navigating Damages," "How to Get Full Value," and "Presenting Damages at Trial." It is a bingeable 550 pages. Chapters are well-written, short, and broken up into very specific and digestible pieces of advice. The advice is familiar and the themes consistent with previous versions, but arguably, for most attorneys, not to the point of redundancy.
Like a new release by a favorite recording artist, I wondered if this latest release would simply be a rehash of tunes that sounded too much like the old ones to excite. The answer likely depends on your level of trial experience. Some seasoned trial attorneys, or even readers of the earlier titles, may find the book redundant. The themes are repeated and the advice similar, though not exactly the same. True, the authors revisit common issues faced at trial, from issues of client likeability to juror bias, from presentation of economic and non-economic damages to discussions of what represents full justice for a client. But likely even the most seasoned trial attorney will find a few new strategies to add to her arsenal. At the least, the book is a reassuring read – like a targeted conversation with a thoughtful colleague on a topic you both love – a topic that is always evolving. There are also timely updates, including references to pandemic era juror attitudes and post-(are we even there yet?) pandemic trials. The collaboration also sets it apart from the last volume of Ball’s, Damages.
I wondered if that collaboration – of David Ball, Artemis Malekpour, Courtney and Nicholas Rowley would work harmoniously, or produce a discordant or disjointed finished product. I was relieved to find that the collaboration works. Drawing on the authors’ combined trial experiences and case outcomes, the collaboration provides a fuller, broader picture of both the issues and solutions possible in any given case. And though I find a lot to like about Ball’s presentation style, his ethos, and his analysis of the challenges faced by plaintiff’s trial attorneys, the additional voices lift Ball’s narrative and increase the nuance and range of the conversation.
Malekpour and Ball having worked together for so long that they are often referred to throughout the book as if they are one person, but they provide separate strengths. Ball himself, and Ball and Malekpour together, provide the bulk of the framework of the book, outlining the now refined strategy for achieving just damages for clients at trial. Malekpour also authors many solo chapters, including Chapter 13, "Helping Jurors Understand a Verdict," which might better be titled, "Understanding Jurors to Help Them Provide the Best Verdict." It’s a deep dive into the juror’s perspective. Chapter 18, "Trust Issues," focuses on who jurors trust. Hint: it is not the most highly credentialed expert anymore. Chapter 19, "Money-minimizing Motivations, Part 1," focuses on cognitive biases – both negative and defensive attribution and how to deal with them.
Chapter 20, "Money-minimizing Motivations, Part 2," is a thoughtful discussion on the plaintiff’s family’s role in cases.
The Rowleys bring their California Trial by Human philosophy to the collaboration, grounding the work with emotional, even empathetic considerations of the client, the jury, and the trial attorney. Along with Malekpour, the Rowleys provide discussions on the importance of meeting clients authentically, and bonding with and knowing them deeply in order to tell their stories powerfully.
All four authors are represented throughout the book, whether in duets or separate solos, in almost every section. The effect is that the whole section benefits and becomes greater than its parts. I found the most effective collaborations in two chapters: Chapter 11, "Respect and Disrespect," subtitled "Humiliation, Shame and Damages," and Chapter 12, "The Stress and Damage of Litigation." In both sections, the issues are plainly laid out, solutions and techniques are explained, and relevant and interesting case examples are provided.
The fab four are not the only authors represented in Damages Evolving. There are bonus collaborators as well. For example, Dorothy Clay Sims authors a chapter. If you are unfamiliar with her lethal strategy for dismantling defense medical experts, then the price of the book may be worth it for Chapter 25. This chapter – "Experts, Cheating and Damages, Part 2: Sworn to Lie," is a 40-page standalone rock opera on exposing lying experts and using the other side’s honest experts to strengthen your client’s case. Sims zeroes in on the strengths and weaknesses of defense experts and lays out her strategy, which can be technical, depending on the medical issue, in plain language. Like the rest of the book, this chapter includes supplemental forms and checklists which makes implementing her advice and practices almost as easy as cutting and pasting.
Characteristic of Ball’s earlier works, this collaboration also follows the pattern of presenting presumed case problems and then solves them. Though you may find yourself thinking, "Why didn’t I think of that?" over and over again, the model on whole remains effective and, at least to this attorney, reassuring. These are not made-up straw man problems. Overcoming the problems discussed in the book is arguably what separates the non-trial attorney who plans to, and does, settle every case, from the trial attorney who anticipates and seeks to overcome the challenges presented to prevail at trial, or settle on the way there, in order to receive full justice for their clients. Issues tackled are familiar. If you are a personal injury plaintiff’s attorney, you have faced these issues – often repeatedly. Whether the issue is client-focused, or arises from defense tactics, or the evidence, or the defense expert, Ball, et al., lay out thoughtful, well-articulated strategies for overcoming the issue, prevailing at trial, and recovering maximum damages for your clients.
Throughout it all, Ball gives credit where credit is due, referencing the work and contribution to the field of other collaborators and colleagues. There are stories about cases and strategies used by Lisa Blue, Keith Mitnik, and our own WSAJ EAGLE Lem Howell. Rick Friedman wrote the introduction and is referenced several times throughout the book. Those attorneys all made the index. One attorney who did not make the index, but was mentioned, is Karen Koehler – call that a hidden track. See if you can find it.
Damages Evolving by David Ball, Artemis Malekpour, Courtney Rowley, and Nicholas Rowley