I’ve long been a fan of David Ball’s advice about plaintiff trial concepts. His book David Ball on damages 3 is available from Trial Guides https://www.trialguides.com/ and should be in every plaintiff trial lawyers library. I recently reviewed personal notes I’d made of some of his ideas, which I’m sharing to encourage study of his publications and suggestions. These are just some random ideas from my notes of his writings.
- While physical pain is important, loss of mobility and loss of independence is a more significant factor for most jurors. To the extent the loss of mobility puts the person in danger from further injuries such as falling, the more important it is to jurors. Difficulty in protecting oneself and loss of mobility are more compelling than talking about pain.
- In cases it can be important to find out what a defendant did after the harm. For example, in auto collisions, it’s important to find out what the other driver did after it happened. Did the truck driver stay in his truck, talking on a cell phone to his boss while your client was injured and bleeding? A lack of care and concern on the part of the other party after negligently injuring someone can be significant.
- When proving the cost of future care, it’s important to not just make the assertion that the money is needed. It should be supported by reasons. For example, (1) what is the specific need? (2) how does it work to help them? (3) who will provide it? (4) why is it needed? (5) in what way will it help? and (6)what will happen if it’s not provided? The jurors need to know that this is their one opportunity to provide this assistance. The client can’t come back again for their help. The client shouldn’t have to gamble on whether or not these required things will be available when and if they are needed. The defendant should be required to pay for it.
- The defendant should not be allowed to claim the benefit of not having to pay for future care because the family can or will do so. It is fundamentally wrong to force the family to provide for the care caused by the negligent harm of the defendant and to give the defendant the benefit of the free care. In addition, obligating the family to provide the care impacts the relationship between them as caregiver and the patient. Furthermore, family care is not always safe nor of professional quality. The issue isn’t just paying money. It is ensuring quality care.
- David’s basic premise regarding the issue of damages is (1) to fix what can be fixed (2) to help what can be helped and (3) to make up by the verdict for what cannot be fixed or helped. This simple outline is a clear and understandable explanation of what the damage case is all about. In presenting our damage cases remember that what the jurors want to know is: “how bad is it? How long will it last? What does it prevent the person from doing?”
- David suggests that in presenting an opening statement, it is the lawyer’s role to be an advocate, but rather to explain and inform. He thinks the jurors want to hear what happened and not what the lawyer thinks about it. In almost every case “less” is really “more.” It should be short, clear and understandable. He recommends using the present tense whenever possible with short simple sentences. A rule of one fact per sentence is helpful. Paint a picture as the story is told with color, smell, sound and so on. The lawyer is a little like a video camera reporting what is there to be seen and heard, without conclusions. Always start by setting the scene and describing what the defendant did that led to the harm. Avoid irrelevant details.
- In presenting the case, it’s helpful if the first witness provides an overview along with introducing the harm. This person should have no stake in the outcome and is a strong witness for the plaintiff. Avoid the idea you are asking for sympathy. In conducting direct examination, try to tie the testimony to the next question such as “after the car crossed the center line what was the next thing that happened?” When presenting lay damage witnesses, avoid long narratives and instead present short mini stories.
These are a few examples, by my translation, of David Ball’s ideas on presenting our plaintiff cases. His writings are clear and understandable. His ideas are solid. I recommend your further study.