Damages by David Ball, Part 2

Yesterday, I wrote that we would be buying David Ball’s 3rd edition of “Damages.” Little did I know we had already ordered the book. I am going to write about things in this book that grab me, in no particular order at this point.

Ball writes: “Among the hollowest of advocacy moments can be when counsel says, in opening, that his client has lost one of her great pleasures – say, gardening.scales

This got my attention quick. I don’t think I have done this. I know I have. Right down to the example: gardening.

Ball’s point is that just throwing out boiler plate suffering like loss of “gardening” without human context, can come off as hypocritical and will “turn even the friendliest of jurors into enemies.” You have to find out exactly what they are talking about when they say they “miss gardening” and you have to make sure you understand – really understand – what the client was doing and why the loss of it is a real absence in their lives.

This strikes a cord with me for another reason, too. I don’t think you should try a case that you don’t believe in with all of your heart. I didn’t always feel that way. But you throw out trite losses like “gardening” that lack any coloration, it is, to use the poker parlance, a tell to the jury that you are not all the way in the case. You can fix that one by following David Ball’s advice here but there are going to be other “tells” along the way that you really don’t believe in your case. To be the best personal injury lawyer (talk about trite, sorry) you can be, you have to truly believe in the client and the depth of the client’s loss as a result of their injuries from the defendant’s negligence.

If you are reading along at home, this is on page 186, Section 6-10 of Ball’s book.

  • Ron,
    I am David Ball disciple…how can you not be. I hope you keep posting about his insights as I love to read how other personal injury attorneys take his advice.

    I completely agree with your point that you should not try a case that you do not fully believe in. But often it seems there is no choice but to go to trial. For instance you take on a case that you initially believe has merit. Discovery uncovers facts you did not know about initially that do not kill the case but make it such that a. you, personally, feel less sympathetic for your client and/or b. you know the facts will not go over well with a jury (no matter how hard you attempt to incorporate Ball, Rules of the ROad or the Reptile. And, inevitably, the case can’t settle either because defense won’t offer anything (because of those same facts) or the client has unreasonable expectations. Sadly, this happens quite often. My thinking, at that point, changes to our civil justice system is there to, among other things, settle disputes. Regardless of whether I think the clients case has much chance of winning, at least they will get an answer from a group their peers. That is not an ideal situation for anyone but in my experience it is often the only option.

  • “Regardless of whether I think the clients case has much chance of winning, at least they will get an answer from a group their peers.”

    Very well said Brendan. Obviously at this stage with the client you may not totally feel as strongly in the case as you did in beginning, but like you said at least they’re getting an answer from a group of their peers.

  • Not to be harsh, but as plaintiff lawyers we are on the side of right and justice and are supposed to win our cases that we bring to trial. If you can’t find a way to truly believe in your case by the time of trial, maybe you should find another line of work.

  • Ron Miller

    I agree with all of the commenters here. How politic!

    I agree with David that if you can’t try cases with clients you believe in, you should find another line or work. But I also agree with Brendan and Jared: sometimes, you opinion can change over the course of discovery to change your perspective. A law firm is still required to continue the case to the bitter end. At my firm, if I don’t believe in the case I’m going to give it to someone else who will either disagree with me and believe in it OR the client is in the same spot with a lawyer that questions her case.

    I don’t think we find ourselves in this spot very often because we make good choice on the front end in picking good clients. But, again, it does have occasionally where what you think you have is not what you have.

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