Psychologist David Ball has published a second edition of his book on damages called, appropriately, Damages. The book costs $85 (only $35 in 2017). The first edition was a similar price, felt, and looked like a thin, big print paperback. But looks are deceiving in this case. The book is excellent, offering insight based on systematic research on how jurors decide damages. Dr. Ball discusses juror motivations for awarding money, why some jurors are reluctant to award compensation, and specific strategies to enhance damages for voir dire (which does not really apply in Maryland), opening, direct and cross-examination, and closing.
I heard Dr. Ball speak last year at the Maryland Trial Lawyers Association convention. He was impressive. Like me, he believes in juries and realizes they are far smarter than most personal injury lawyers believe they are. Dr. Ball does not give you information to “trick” the jury because he knows juries almost rarely fall for such artifices. Instead, Dr. Ball looks at some of their motivations for not giving fair compensation and how to overcome those obstacles.
This is an impressive book and we literally read it before every trial since this book came out. In 2017, we read Damages with Reptile which is a book written by David Ball and Don Keenan. This is the book we primarily rely on before going to trial. We try to take our cases and fit it without the overall strategy of the book.
I’m hesitant to summarize the book here because anything other than a full analysis will invariably be an oversimplification. But the gist of it is that juries see a bigger picture when they consider a verdict and they look at how the verdict affects themselves. If jurors feel that they are resolving a claim for just the victim, the give a smaller award than if they believe they are curing larger safety problem that could affect them and the people they love. It also underscores that to win at trial, the defendant has to have violated a safety rule.
The book itself is based on scientific principles uncontroverted about the evolution of the human brain and how we are, from an evolutionary standpoint, still a prisoner of how we developed hundreds of thousands of years ago. The theory is named the “triune brain.” A neuroscientist named Paul MacLean introduced it in the 1960s. Under this theory, the human brain comprises three parts: the reptile, the Paleo-mammalian, and the neo-mammalian brain, each responsible for different functions. The reptilian brain is responsible for basic life functions such as breathing, balance, hunger, sex drive, and survival instinct.
I don’t agree with all the logical extensions made from this science. But Reptile works and the basic premise that jurors place substantial weight on their most basic security and safety when reaching a verdict.
This is hardly devious mind manipulation. Any trial lawyer wants to influence how a juror considers the subject and frame the issue in terms the juror can appreciate. All of us, with excellent reason, value safety, security, and enhance our safety and security and for others in the community. Jurors should have this backdrop when deciding personal injury cases.
- How to use safety rules at trial
- Rick Freedman has an incredible book that many of us at Miller & Zois read before trials. This book has particular application when the credibility of the plaintiff is at issue in terms of the scope and extent of the injuries.
- David Ball on cross-examining experts
- Our Attorney Help Center has a sample opening and closing statements, trial transcripts and lots of other samples and forms to help you get ready for trial