I’ve known trial consultant David Ball, for many years. He’s assisted me on a number of major cases. David is a nationally known consultant who has lectured throughout the country and the author of a number of important books about trial. His most recent book, David Ball on Damages 3, is required on the shelf of every trial lawyer. What I’ve learned from David is the concept of directness and simplicity. Here is an example of some of his basic concepts regarding opening statement. It does not due credit to his full recommendations and explanations, but it illustrates the kind of approach David advocates. I hope this will encourage you to explore more fully David’s writings, books, and teachings on trial, especially damages.
A. THE PRIMARY RULES THE DEFENDANT VIOLATED
Good morning. (State the rule): (Note: Two rules are best & three is the maximum)
This is a public safety case involving reasonable duties of care. These include:
If a healthcare provider violates even one of these rules, and someone is hurt, the healthcare provider is responsible for all of the harm, losses, and suffering.
[WRITE “BREAK RULE + HARM= RESPONSIBILITY]
B. THE STORY OF WHAT THE DEFENDANT DID
1. Now let me tell you the story of what happened in this case – Let me take you back to…”
C. WHO WE ARE SUING AND WHY WE ARE SUING
Now let me tell you why we filed this case against Dr. SJ:.
1. What violation of the rule occurred
“We are suing (name) for three reasons. The first reason is…”
(1) No public facility, like a hospital, sports stadium, library or mall, is ever allowed to needlessly endanger the public.
(2) A professional, like a doctor or lawyer or accountant must never needlessly place the patient or client in danger.
(3) A doctor should never needlessly injure a patient.
–When there is more than one available way to achieve exactly the same level of benefit, the doctor is not allowed to select a way that carries more danger than the other. That would allow unnecessary danger, which doctors are not allowed to do. In other words, A doctor should choose the safest way to perform a procedure
The first reason we had to bring this claim against Dr. SJ is because he chooses not to needlessly endanger his patient by doing the surgery in a way that substantially increased the risk to the patient….”
(1)Explain how we know defendant did the act
(2)How we know it is a safety rule
2.What is generally dangerous about violating this rule
(1)How the rule protects people
(2)What the experts will explain about the rule & danger of violating it
3.How the violation caused harm in this case
(1)Explain what the defendant did that violated the rule
(2)Explain how our experts know it caused the harm
4.What should the defendant have done instead of violating the rule
(1)Explain the actions that would have obeyed the rule
(2)Explain how you know that
5.How obeying the rule would that have changed anything
D. WHY THE DEFENSES ARE NOT VALID
1.Before we decided to take this case to trial, several things had to be determined.
2.For example, (cite a negligence issue)
3.Explain what you did to determine the real truth about this
4.Explain what the result of the determination means: Thats how it was determined that…..
E. CAUSATION AND DAMAGES
1.Introduce harm and damages
(1)Introduction: Explain why you are talking about this:
“One of your most important tasks as jurors will be to figure out how much money it will cost to make up for the losses and harm caused by Dr. Saint Jacques. The only thing you are supposed to consider when deciding on money is the number of losses and harm.
So, over the course of the trial, we will have to show you all of the losses and harm. It’s not to get sympathy. The time for sympathy is past. We are here to collect debt. A debt owes to this family. We’re here for you to determine the number of losses and harm because that’s the only basis you can use for deciding about money.
Now all of this money goes to pay other people for Mike’s care, except for the lost wages—money that will only make Mike even with what he would have if this had not happened. But none of this makes up for the greatest part of the damage, what this did to Mike, his human losses. Paying for the nerve repair surgery and physical therapy is one kind of required compensation; money to make up for Mike’s having to suffer with the pain of the loss of use of that arm and the pain of surgery is another.”
(2)Explain the mechanism of harm: Step by step clinically explain how negligence caused harm
(3)Consequences: For each injury how it impacted client
(4)Undermine defense of causation & damages We had to determine that the problems were due to the collision & not something else
(a)Explain what was done to determine the real truth
(b)Explain what the result was
(4)Treatment: Fixes and helps – what client has gone through
(5)What cannot be fixed or helped
2.How did the negligence cause each injury
3.What were the consequences of each injury
4.What remedies represent Fixes and helps
5.What cannot be fixed or helped
F. WHAT THE JURY CAN DO ABOUT IT
We will show you what caused ….harms and losses and how much money it will take to fix, help and make for them. Everything we show you in trial is for you to see why Mike should be compensated, and how much money will equal the amount of harm. You’ll see that amount equals the medical costs and, the greatest harm in this case, what this did to Mike as a person. By the end of the trial, you will see why the evidence makes this the kind of case in which I will have to come back later and ask for an amount that sounds like a lot of money right now, but which you will later realize is right fair and proper. That amount will be $________. Thank you