David Ball on Damages 3 (eBook)

David Ball

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David Ball on Damages is America's bestselling text on proving damages. Now, David Ball on Damages 3 teaches you how to integrate the Reptile and Rules of the Road™ methods, along with new voir dire techniques, into the classic Damages method. Damages 3 provides step-by-step guidance on how to prepare opening statements; how to handle cross-examinations and defense "expert" examinations; and new, key methods that explain the relationship between liability and damages.

David Ball on Damages 3 is filled with improvements and refinements based on thousands of hours of research and real case preparation that Ball and his partner, Artemis Malekpour, have uncovered since the second edition's 2005 release. Ball explains why jurors give, why they do not, and how to motivate them to provide a large verdict. Damages 3 provides practical, effective, and innovative methods for pursuing damages, while alerting readers to pitfalls that both new and experienced attorneys are prone to. The techniques and tools that Damages 3 provides counter sophisticated opposition tactics, the public mood, and laws and rules that continue to grow more hostile.

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Paperback: 520 pages; 3rd edition (2012); ISBN: 9781934833896 | CD/Audio Digital Download: 788 minutes; 12 discs; 3rd edition (2011); ISBN: 978-1934833407
Publisher: Trial Guides, LLC
  1. Publisher's Note
  2. Foreword to the Second Edition
  3. Foreword to the Third Edition
  4. Preface
  5. Acknowledgments for the First Edition
  6. Acknowledgments for the Second Edition
  7. Acknowledgments for the Third Edition
  8. Introduction to the Second Edition, 2005
  9. Introduction to the Third Edition, 2010
  10. Chapter One. Fundamentals
    1. Fundamental One: Juror Self-Protection
    2. Fundamental Two: Proportion of Time on Harms and Losses
    3. Fundamental Three: You
    4. Fundamental Four: Client's Point of View
    5. Fundamental Five: Defendant Conduct
    6. Fundamental Six: Inadvertent Wrongdoing
    7. Fundamental Seven: Worthwhileness of Money
    8. Fundamental Eight: Fix, Help, Make Up For
    9. Fundamental Nine: Degree of Harms and Losses
    10. Fundamental Ten: Who Gets the Money
    11. Fundamental Eleven: Importance
    12. Fundamental Twelve: Going Home Afterward
    13. Fundamental Thirteen: Compromise Kills
    14. Fundamental Fourteen: Seen Worse, Been Worse
    15. Fundamental Fifteen: People Should Pay for Their Own Problems
    16. Fundamental Sixteen: Divine Punishment("God is My Co-Juror")
    17. Fundamental Seventeen: Don't Wanna Punish the Defendant
  11. Chapter Two. Noneconomic Damages
    1. Obstacle 1: No Worthwhileness
    2. Obstacle 2: No Way to Calculate
    3. Obstacle 3: Can't Define "Compensation"
    4. Obstacle 4: Defense Plea for Jury Nullification
    5. Obstacle 5: Bad Comparison to Economic Damages
    6. Obstacle 6: Why Pay Family to Be Caretakers? Why Pay for Professional Care When the Family Can Do It?
    7. Obstacle 7: "Even If That's the Right Amount, It's Far Too Much for Any Individual"
  12. Chapter Three. Rules for Jurors: Preponderance; Harms and Losses Only
    1. The Preponderance Template
    2. The Preponderance Formula
    3. Preponderance Template: Jury Voir Dire
    4. Preponderance Template: Opening (The Boilerplate Tag)
    5. Preponderance Template in Plaintiff's Testimony
    6. Preponderance Template in Defense Testimony
    7. Preponderance Template in Closing
    8. Preponderance Template: Conclusion
    9. The Harms-and-Losses-Only Template
    10. Harms-and-Losses-only Template: Jury Voir Dire
    11. Harms-and-Losses-only Template: Opening
    12. Harms-and-Losses-only Template: Testimony
    13. Harms-and-Losses-only Template: Closing
  13. Chapter Four: With or Without Jury Voir Dire
    1. Voir Dire Limitations: Fight Them! No Voir Dire? Fight for It!
    2. Jurors' First Impression: Primacy and Persistence
    3. How to Ask
    4. Tort "Reform"
    5. Noneconomic Damages: Spotting Problem Jurors
    6. Other Noneconomic Elements
    7. Tolerance for Pain
    8. Asking about (or Sneaking in) a Specific Figure in Voir Dire
    9. Asking about Caps
    10. Juror Demographics Affecting Damages
    11. Personality Traits
    12. Religion Matters
    13. Inadvertence
    14. Leaders
    15. Child Witnesses
    16. Paid Experts
    17. Multiple Survivors
    18. Harms Consultants
    19. Harms and Losses Lists
    20. Final Thoughts
  14. Chapter Five. Opening Statement
    1. Introduction
    2. Your Standing with the Jury
    3. Structure
    4. The Template
    5. The Template Cont.
    6. Damages-Only Case
    7. Loss of Personal Image
    8. Beware the Unknown: What Jurors Don't Know Can Clobber You
    9. Keep Jurors Listening
    10. fear of Not Understanding
    11. Motivations
    12. Loss of Consortium
    13. E-nun-ci-ate
    14. Stop the Bullet Points
    15. Dress Approachably
    16. Decorate Yourself Modestly and Moderately
    17. Length of Opening
    18. Eye Contact
    19. Movement
    20. Rehearse
    21. Lighting
  15. Chapter Six. Direct Examination
    1. Mud and Gold (Less Mud = More Gold)
    2. Controlling Your Witness on Direct
    3. Short Questions
    4. Don't Make Your Client a Whiner
    5. How Does that Make You Feel?
    6. Spouse
    7. Before and After Witnesses
    8. How Many?
    9. Stories
    10. Hollow Advocacy
    11. Witnesses as Sources of Worthwhileness
    12. Sequence of Witnesses: Damages Witnesses
    13. Children
    14. Grief and Pain Counselors
    15. Minimum Life-Care Plans (and Equivalents)
    16. Using Liability Witnesses for Damages
    17. Day-in-the-Life Videos
    18. Should Your Client Be in Trial?
    19. Client In and Out of Trial
    20. The Best and Cheapest Experts: High-School Teachers
    21. Paid Plaintiff's Experts
    22. How to Use Experts
  16. Chapter Seven. Cross-Examination
    1. Rules for Analysis
    2. Hitchhiking: Use Defense Liability Experts for Damages
    3. Undermining Defense Life-Expectancy Estimates
    4. Undermining Accusations of Malingering and Exaggeration of Symptoms
    5. "Litigation Syndrome" and Other Bogusaria
    6. Control
  17. Chapter Eight. Closing
    1. Overview
    2. When to Write It
    3. Make Jurors Listen
    4. Teaching Your Favorable Jurors How To Win (Arming Them)
    5. Keep on KISSING!
    6. Why Are You Saying That?
    7. Help Jurors Respond to the Folks at Home
    8. Essentials for Closing
    9. Minimum Life-Care Plan in Closing
    10. Massaging the Jury Instructions and Questions
    11. Language
    12. Intangibles Argument: Ratio to Tangible Losses
    13. Holistic Damages
    14. SCALES: Calculating the Intangible Amounts
    15. Admit Some Fault
    16. Comparative Fault: Double Dipping
    17. Proportions: The Damages Circle
    18. How Do You Decide on Appropriate Amounts?
    19. Jurors' Weekends and Other Treasures
    20. The First Thing You think
    21. Two Futures
    22. Safety
    23. Judo Law and "The Gift of Malingering"
    24. Vague Language
    25. People Care v. Money Care
    26. Closing: Quickies
  18. Chapter Nine. Public Respect and Trust: Restore It and Deserve It
    1. The Problem
    2. The Foolproof Solution
    3. Does It Work?
    4. The Specifics
    5. A Potpourri of Good Works
    6. Rejecting Cases
    7. Organizations
    8. Show the World
    9. Epilogue
  19. Supplements
    1. Supplement A. Jury Voir Dire
    2. Supplement B. Story for Opening Statements
    3. Supplement C. The Ball Opening: A Guided Template
    4. Supplement D. Sample Opening
    5. Supplement E. Differential Diagnosis in Med Mal Opening
    6. Supplement F. Sample First-Person Story for Closing
    7. Supplement G. Pitfalls: A Primer for the New Lawyer; A Reminder for the Not-So-New
    8. Supplement H. Virtual Reality: How Jurors Finding Information Online Can Swing Your Case
    9. Supplement I. What Is a Defense Expert Really Allowed to Say?
    10. Index
    11. About the Author

What Legal Leaders Are Saying

More good verdicts and settlements have been credited to the second edition of David Ball on Damages than to every other resource combined. If there are any trial attorneys left who do not heavily rely on David’s work, they need to immediately immerse themselves in the new, updated  third edition.  David almost single-handedly led trial advocacy out of its dark ages and into a new world of advocacy that combines real science, real art, and real results.

— Gary C. Johnson, listed in the Martindale Hubbell Bar Register of Preeminent Lawyers, named a Kentucky Super Lawyer

David Ball on Damages, 3rd edition, is essential for every plaintiffs’ trial lawyer’s toolbox. Not only has Ball moved his own work to the next level and refined it, but he has also expanded his vision to integrate all of the latest knowledge and cutting-edge techniques. And it’s all in one book! Step by step, he explains how to do it and how to make it work for you. This third edition is the Rosetta stone of modern trial practice guides. Don’t try another case without it.

— Thomas Penfield, adjunct professor of law, University of San Diego Law School, listed in Best Lawyers in America

David Ball’s Damages 3 is appropriately named. It has at least three times the information of the earlier editions. David is constantly in touch with hundreds of lawyers and trials in addition to ongoing focus group research. This new edition is an absolute must.

— Jude Basile, member of the Inner Circle of Advocates, president of the Trial Lawyers College

Damages 3 by David Ball is a valuable resource. It presents important new ideas and techniques. I have long believed that David’s advice on opening statements is a major advancement in trial practice. I use Damages 3 as the text for my Advanced Trial Advocacy law school class.

— Mark Mandell, adjunct professor, Roger Williams University School of Law

I’ve read each successive edition of Damages, and the third edition is not your standard revised edition. This new version teaches you how to communicate very effectively with today’s juries about general damages. I’ve used the methods to obtain record-setting pain and suffering awards in a conservative, rural jurisdiction. In a word, this method works, even on today’s tort-reformed juries.

— J. David Stradley, member of the North Carolina Academy of Trial Lawyers

David Ball on Damages 3 is to trial strategy as Shakespeare is to drama. David’s wonderful book is a delight to read, a necessity to master, and a pleasure to deploy against the dark forces that conspire to undermine justice for our clients. As a devotee of David’s second edition, I can verify that Damages 3 goes light-years beyond the earlier editions. I thought Damages 2 was as good as a trial strategy book could be. I was wrong. You need Damages 3. It’s worth many times its price, and many times the time it takes to read and master it.

— Darryl Lewis, listed in Best Lawyers in America, named by the South Florida Legal Guide as one of Florida’s top lawyers

[David Ball on Damages 3 is] revamped with changes to reflect the newest cutting-edge research on modern juries as well as the evolving methodologies of [the] Rules of the Road and Reptile approaches. With step-by-step examples of how and why to do or say certain things, this book is a must for any plaintiffs’ lawyer.

— Jessica Hoffman Brylo, JD, MA, attorney and mediation/trial strategist

David Ball’s third edition of Damages is the first resource I turn to in getting ready to litigate and try my medical malpractice cases. Not a rewrite of his past work, this third edition is full of new insights found nowhere else.

— B. Elliot Grysen, MD, JD

If you found the second edition helpful, the third edition of David Ball on Damages takes those basics to a whole new level. It contains many important new suggestions for all phases of the case, including new methods for dealing with common defense tactics. Most importantly, it adds brand-new material based on continuing research and experience, and brings together important lessons from Rules of the Road and Reptile. If you are still relying on the second edition, there is much you are missing. The third edition is well worth having, no matter what else you have in your library.

— David Rudolf, listed in Best Lawyers in America, listed as one of the top 100 lawyers in North Carolina by North Carolina Superlawyers

David Ball, the acknowledged guru on presenting damages to a jury, has done it again. His new third edition of Damages incorporates the newest and most innovative techniques, including Rules of the Road and Reptile. Damages 3 is required reading for the lawyers in my firm and should be read by every attorney entering the courtroom.

— Mark S. Davis, member of the Inner Circle of Advocates, the Board of Governors, and the American Association for Justice

There are a few people whose arrival on the scene irrevocably changes it. ‘Game changers.’ From his first book on how stories need to be told in a courtroom, David Ball’s commanding gifts of strategic analysis, audaciously original intelligence, and penetrating understanding of the what/when/how of jurors’ needs, his investigations have changed how we speak to jurors (and to each other) on the subject of damages. If David Ball is reporting his latest research and results on how attorneys can help those who’ve suffered ‘harms and losses’ at the hands of others … read it.

— Joshua Karton, Communication Arts, Trial Lawyers College, and California Western School of Law

Those of us who have been athletes will appreciate the fact that David is like a great coach. He makes you the best player you can be. we all need David at our elbows with every case. A cover-to-cover rereading before each and every case will be your most valuable preparation time.

— Don Keenan, author of Reptile and member of the Inner Circle of Advocates

I highly recommend David Ball on Damages, 3rd edition. The double whammy of incorporating David Ball on Damages with Reptile, which have different methods that I have separately used to win seven- and eight-figure jury verdicts, is incredibly powerful.

— Derek Potts, listed in Best Lawyers in America

Damages 3 (David Ball on Damages, 3rd edition) is a completely new approach to proving damages and a must-read for trial lawyers. How we have to try cases changes drastically with the constant political, legislative, and judicial assaults on the civil jury system. No one understands those changes better than David. For the first time, David’s extensive fieldwork, as well as his research on Reptile, Rules of the Road, and Damages, is brought together in one authoritative work: Damages 3. You’re not current on jury research until you read this book. These techniques are tested and proven. We owe a mastery of these methods to our clients. I have used Damages 3 as lead counsel in the September 11th Aviation Litigation and the Composix Kugel Medical Device Litigation, producing to date over $700 million in settlements. This works. Use it.

— Donald A. Migliori, listed in Best Lawyers in America, president of the Rhode Island Association for Justice

It’s hard to improve on a masterpiece like Damages 2, but Damages 3 completely refines and improves the previous edition through teaching by example and by easy, step-by-step instructions with clear explanations. What you immediately notice about Damages 3 is how clearly the principles are explained with new and improved techniques. In just one volume, David Ball has managed to bring together and refine the technique of the Rules, Reptile, and Ball Damages methods. This book is a dramatic expansion of the previous edition. This updated and improved edition is a must.

— Paul Luvera, member of the Inner Circle of Advocates, fellow of the American College of Trial Lawyers

David Ball on Damages, 3rd edition, is a must have. The number “3” tells us it’s 1. New, 2. Better, 3. Best. New, additional content based on more studies and analyses. Better than the 2nd edition, and who would have thought that possible? Best work by the best in the business. It might be malpractice not to know this book

— Robert T. Hall, author of Grief and Loss, former president of the International Academy of Trial Lawyers

If you are going to trial or may go to trial, you need David Ball’s third edition on damages: Damages 3. It pulls together David’s most recent research to make current jurors think about how your case affects them. You may have read the first two editions, but Damages 3 is a major leap forward.

— Hoyt G. Tessener, member of the Southern Trial Lawyers Association and the American Association for Justice

In Damages 3, everything from edition two has been refined and developed based on how the methods have worked in the field and with current juries. Like other David Ball material, this book teaches by example and step-by-step instruction. Most importantly, this book teaches a step-by-step method for creating the most effective opening statements. I have taped the book’s opening template to my desk and return to it time and again—not just for opening but also when drafting briefs, mediation statements, and other persuasive parts of a case. Once you’ve read the Reptile material, this is the handbook to take with you into battle because it has the more concrete how-to directions.

— Laurie Koller, member of the American Association for Justice

Make no mistake. David Ball’s Damages 3 is no mere rehash. It truly represents major advances from his prior work. David has brought together, for the first time, his unique and highly successful Damages methods with both the Rules and Reptile concepts. He provides dozens of new insights developed from actual work ‘in the field’; and identifies new and innovative methods for dealing with key defense tactics. It is a must for any trial lawyer’s library.

— Todd A. Smith, member of the International Society of Barristers, the American College of Trial Lawyers, and the International Academy of Trial Lawyers

I wish I’d known [of] Damages 3 when I started forty years ago.

— Mike Ferrara, past president of the Association of Trial Attorneys of America–New Jersey, fellow of the American Board of Trial Advocates (ABOTA), fellow of the International Academy of Trial Attorneys

David Ball needs no introduction. His research into jury psychology and damages is invaluable to every plaintiffs’ lawyer out there. In his recent work – David Ball on Damages 3 – Mr. Ball seamlessly weaves together his visionary research and insight in the field of damages and jury psychology with concepts from Rules of the RoadReptile, and more. In short, Mr. Ball has once again created a masterpiece. By using the concepts from his new book, my partner and I (age 29) recently were able to obtain a $3.9 million dollar jury verdict in a disputed liability case in a very conservative jurisdiction. Although the odds were against us, we utilized the sound principles and advice contained within Mr. Ball’s new book on damages. The result speaks for itself.

— Torsten Bassell, ljblaw.com

As is his custom, David Ball has brought his brilliance to bear once again to offer new and important insights into the evaluation and proof of damages in the third edition of David Ball on Damages. The most important aspect of the new edition is that it coalesces the timely and valuable wisdom of [the] Rules, Reptile, and Ball Damages methods and blends them seamlessly into techniques for influencing today’s jurors. Once again, David’s analytical skills are exceeded only by his ability to reduce the complex to simple, usable form. The book is a must read for trial lawyers.

— Howard L. Nations, Trial Lawyer Hall of Fame inductee, recipient of the American Association for Justice Heavy Lifting Award

I have great respect for David Ball, as evidenced by the fact that I have been consulting with him for years and have read all of his previous writings. I am in the process of preparing for a four-week trial, and I found that his David Ball on Damages, 3rd edition, is an invaluable source. Everything from his previous book has been significantly refined and developed. Any trial lawyer who does not take the time to read this new edition is not adequately arming himself or herself to best represent their clients.

— Joseph A. Quinn, member of the Inner Circle of Trial Advocates, fellow of the International Academy of Trial Lawyers and the American College of Trial Lawyers

Damages 3 represents a great improvement on the prior material, which in itself has been stunningly helpful. Awesome work.

— Ian Lyngklip, Super Lawyer for the state of Michigan

David Ball on Damages 3 is a must own (read) for anyone seriously trying cases today. If you are still relying on Damages 2, you are out of date. Damages 3 contains five years of additional research and incorporates lessons learned from Reptile and Rules of the Road. This updated edition contains dozens of important new methods and techniques for every element of pretrial and trial. This new edition contains numerous sample openings, including car crashes that were not included in prior editions. Before every trial, I reread Damages 3. It is required reading.

— Bruce H. Stern, listed in Best Lawyers in America and Who’s Who in the Law

Having had the good fortunate to be a disciple of David Ball for over ten years, I can tell you that the third edition should always be in your trial tool box. The new edition has countless new techniques for use at both pretrial and trial—techniques and methods that are cutting edge, and that work because they are solidly supported by research and actual trial experience. For me, the third edition is essential reading and rereading before every trial and even pretrial proceedings.

— Ernie Teitel, member of the American Board of Trial Advocates and the National Institute of Trial Advocacy

David Ball on Damages, 3rd edition, is another great piece of work. I pitch it constantly and tell people to make sure they have the latest edition, as of course I have myself since it came out. David Ball’s first two damages books were great and revolutionized damages proof. However, Damages 3 is the pinnacle with much new research, methods, and techniques, including step-by-step how-to descriptions. It also brings together Reptile, Rules, and David Ball’s Damages methods in one place for the first time. The latest version is every plaintiff lawyer’s bible.

— Jerome F. O’Neill, listed in Best Lawyers in America, member of the International Society of Barristers and the American Board of Trial Advocates

I have witnessed many attorneys with thirty years of trial experience lose good cases due to the poison of tort-reformer juries and, frankly, reluctance to learn new ways. David Ball’s Damages 3 is a trustworthy companion for battle. It brings together some of the latest and best ways to win cases with tort reformer juries in mind. Unlike past books, Damages 3 has easy-to-follow charts incorporating Rules, Reptile, and Ball Damages methods. Damages 3 has dozens of techniques for bringing these methods together. I highly recommend this book for any serious trial lawyer. Ball’s methods are tried and true. Simply, they work.

— Sonia Chaisson

David Ball separates himself from the rest by providing a road map to success by not only teaching you what to do but showing you how. You wouldn’t think of driving somewhere you’ve never been without a GPS. So why would you run a jury trial without looking at the most comprehensive guide on how to do it? With the third edition of Damages, David further demystifies the process of how to get jurors to want to come your way. David Ball shows you how to combine techniques like Rules of the Road and Reptile to present your case in a way that engages and empowers the jury.

— Michael J. Slater, member of the Law Society of British Columbia, the Trial Lawyers Association of British Columbia, and the American Association for Justice

He teaches a simple yet brilliant trial methodology to connect jurors with your case. Freeing trial lawyers from the legal language and legal structure that more offend than please jurors, Damages 3—especially for those like me who learn better from practical illustrations than abstract formulations—shows how to best realize the verdicts and settlements our clients deserve. To catch up, stay current, or move ahead, Damages 3 provides a workable way to communicate and connect with your jurors whatever the news cycle, political season, or other external circumstance competes for the interest of your jurors. You wouldn’t argue evidentiary issues without knowing the rules of evidence. Without learning the techniques and rules taught by Damages 3, you should not try a case.

— Guy R. Bucci, member of the American Association for Justice