To celebrate the 50th episode of Civilly Speaking, host Sean Harris talks with special guest, Dr. David Ball. David is the co-founder of the Reptilian Trial Advocacy Method and the nation’s most influential trial consultant. During this episode, David shares his insights on a variety of topics, including unsuspected brain damage, damage drivers, premature advocacy, and more.

Sean: Hello, I’m your host, Sean Harris and welcome to a very special episode of Civilly Speaking brought to you by the Ohio Association for Justice. Today is August 21st and this is our fiftieth episode. In recognition of this milestone, we are very excited and honored to have with us Dr. David Ball, co-founder of the Reptilian Trial Advocacy Method and the nation’s most influential trial consultant. David, thank you very much for joining us here on Civilly Speaking.

David: Absolutely. My pleasure.

Sean: Now, the first question I have for you is, in a personal injury case, when should I suspect that my client has unsuspected brain damage? And by the way, I’ll note that that question uses the word brain damage and not brain injury.

David: Well, let’s not spend too much time on that distinction. You can have brain damage from things other than injury is the difference in meaning. So perhaps I should have I should talk about injury because we’re talking about injuries and the reason that is a very important question is it’s one of a group and I’m going to talk about several of them today. It’s one of a group of injuries that I would say most lawyers ignore most of the time because they don’t, they look at the injury, the patient’s injury, the way the patient comes in, the client I mean, and it never occurs to them that this kind of injury could be accompanied by brain damage. Somebody, for example, something terrible falls on their leg and it crushes their leg and who would suspect brain damage? The fact is that virtually anything that’s serious enough to injure anybody catastrophically, that just means inside the body and even something that does not touch your client, such as a very loud noise, can cause brain injury. So, the crash of a car crash, the noise can be loud enough to cause some brain damage. That’s one of the less usual ways it happens, but impacts being heavily jarred you cannot tell from where the injury is on the body whether or not it also damaged the brain. Similarly, you cannot tell by talking to the person the way that whether or not they have brain damage because most kinds of brain damage, unless they’re massive, manifest themselves in ways that aren’t going to just come up sitting in your office having a conversation or even with a doctor. No one can tell just by looking. One of the quick ways to find out, this will sound silly, but it’s true. One of the very first things that a brain injury damages is a person’s sense of smell. So the next time your client is in your office or even at intake, have an open jar of peanut butter hidden away in your office some place under your desk and ask them if they smell anything. And if they don’t, they may have brain damage. That doesn’t mean they do have brain damage, but it’s a very high indicator and I just want people to stop ignoring the possibility of brain damage. I’ve worked on too many cases where we come in and we suggest it because frequently were hired to consult after things like discovery are over. We generally like to start earlier and determine if the person has brain damage, well brain damage adds a decimal or two decimal place or two to the verdict because it’s such a serious injury and you can show it to be so massive, so massive in terms of how it affects the client. So please don’t, get out of the habit of ignoring it. You can develop a local doctor or some somebody who can examine the patient for you. Doesn’t have to be a witness in trial whenever you think whenever they don’t pass the peanut butter test and there’s other little ways you can tell, but you cannot tell by talking and you can do them, I don’t care how perceptive you are, how much brain damage you see, you might spot it when it’s there, but you cannot rule it out just by looking. Nobody can. No scientist, doctor, anyone else can rule out brain damage just by looking. Similarly, and let me jump into another very related topic. There is a whole, huge range of injuries that are ignored in case after case after case and when we get involved early enough, fortunately, is time enough, if it’s early to get those things put into the case where they belong and you know, we get involved a little bit later after Discovery and after the reports are in, it’s a lot harder to do that, but what I’m talking about is what are the long term consequences of the injuries the person has? I don’t care what kind of injury it is. If it is a long term or permanent injury or even in some cases when it seems like a shorter-term injury that got better, there can be long-term damages and before I go into how do you find them or what they are, if there’s a possibility of long-term harm, you need not prove it beyond preponderance. That’s not the standard at all because it goes to noneconomic damages. If the client is worried, has anxiety, has reason to be worried about potential future long-term consequences of something that happened to them because of the defendant, the fact that your client is worried about them means that the worry about them goes to emotional damages, noneconomic damages, and the worry that will I have the X amount of dollars to pay for the care if that happens, that also goes to noneconomic damages because I’m worried that I won’t and then what’ll happen to me? And so, the jury can remove that worry. Remember, you’re dealing with a non-economic damage. The worry the jury can remove the worry of, say, early senility and you can’t remove the early senility, but you can rule the worry of how well I support myself if that happens to me by simply providing that much money to take the worry away. So, you’ve got a hard dollar figure or at least a not so soft dollar figure attached to noneconomic damages. And what am I talking about? Well, for example, if your client is paralyzed and sitting down on a wheelchair, their risk of cancer and heart disease go up higher than if they started smoking. That’s pretty hefty. We warn everybody don’t smoke, but we don’t seem to worry about them too much when they’re in a wheelchair or for that matter, you sitting in your office chair all day long. It also raises the chances of bad things happening among them, heart disease, cancer or things like that. So, everything has its long-term problems. If you have a typical neck problem where there is nerve damage. Be aware that a damaged nerve can in the long run damage nerves that run alongside that nerve and that nerve can go anyplace in the body. So, a damaged nerve in the leg, in the neck can spread to other nerves and those can spread beyond that. If you need an explanation of that take a look at a chapter by Jeffrey Cohen, C O H E N, in a book called Reptile in the Mist. Many of you probably have that book. Take a look at that chapter and it will teach you about what happens with nerves and since the nerves are involved in so many injuries or damage of some sort, this too, is something for your client to worry about. If pain, if your client is in a lot of pain, it interferes with their sleep. It either interferes with their sleep because they’re in pain or it interferes with their sleep because they’re on meds to help with the pain. Either way, people are not getting normal sleep. Even if they’re getting their seven or eight hours sleep. It is not normal sleep anymore because the pain is either meaning you are sleeping less soundly or the meds are what is allowing you to sleep and that the meds themselves interfere with getting normal sleep. The consequences of intruded upon sleep are enormous. They will lead to early senility. Whatever kind of dementia you were going to get, you will get it earlier. It can cause all kinds of problems. Do your own research on this. I’m going quickly today, so I’m not going to go into detail about this, but there is a website, one of several, that report on all the research that’s going on and currently being reported on all over the country, all over the world for that fact. It’s called Science Daily, sciencedaily.com has got a good search engine. You look up things like sitting down all day or bad sleep or whatever, and it’ll give you all the really good research that’s coming along. So, don’t neglect that and third, the long-term consequences. And don’t neglect for permanent or long-term injuries. Your patient worried that when the invention comes along, that might help him, whatever it is, for example, we can now get quadriplegic and even fully paralyze people back up and walking. It is incredibly expensive and it’s cumbersome, but less and less so. But it’s there and it’s getting better. And it will be available to the public within the next, what, five, ten, twelve, fifteen years. But it’s going to cost a fortune. Your client worries about Jesus, the worst thing I can imagine for myself emotionally is to know something like that is out there. I apologize for saying Jesus. I’m trying to break my habit of offending people by using the Lord’s name in vain. It never affected me, but it affects friends so I’m try to stop doing it, that the client will say, I feel so, I can’t imagine anything making me feel worse than knowing my pain could stop tomorrow. I could be up and walking in a week and not have the money to do it. So again, all that goes to noneconomic damages. If your patient can show that the whatever it is, the worry of a future harm of some sort or not having the money to be able to take advantage of what everyone else can take advantage of the advances of medical science or whatever. You can talk about those things and whether or not and you usually will, but whether or not that successfully, you get a bunch of money for it, you may get money for something else because it helps to show the jury how awful the injuries really are, not just the current ones and that’s terrible, the thought that you’ll be worse in the future is really hard for people to take. We’re all used to being sick and being hurt and thinking, well, I’ll be over this someday, but not this person and so that makes the entire case a much more serious event for the jurors in terms of your client and that, in turn, makes the negligence seem that much more egregious because it caused so much harm, not just the suspected harm that you saw when the patient walked into the when your client walked into the office. Okay, so those are the areas, the main areas of future damages that if you get nothing else out of anything you hear today, start looking at that. It makes it, it adds decimal points to your verdict and it helps your clients in ways they might not even know they need at this point.

Sean: And that’s a great point. I hear clients lots of times when they’re talking about worries in the future, speaking in terms of precautions that they have to take, that they know regular activities they would have been able to do without thinking about it. Now, before they go for a walk, play with the grandkids, whatever it is, they have to think a couple steps ahead.

David: And they have to think that since I’m much more prone to being injured again, for example, if somebody does have brain damage, a second trauma of equal proportion vastly hurts vastly more than the first. In other words, become an expert on the future. You’re not reading crystal balls. There is so much experience and research out there. You can show that what’s suspected as whatever the level of injuries are, that it may be multiples of that in the future.

Sean: You know one of the most common questions that trial lawyers ask or wonder about is, when it comes to juries and damaged drivers, what factors in your experience drive jurors to come back with plaintiff friendly verdicts?

David There are several. Let me talk about just two and I’ll talk very briefly. One is because they’re really kind of simple context. They’re not the level of damages. Those are the level of injuries which are extremely important. I’m not suggesting diminish those for a moment, but there are two things that drive several things that drive the jurors to want to compensate for the damages, but the damages to the injuries in themselves don’t drive anywhere near as strongly as, say, defendant conduct. The more, the worse, the more outrageous the defendant’s conduct is, the better, the better. The worse actually, the more it drives money.

Sean: Right.

David: So, for example, the client who just bumped into your back bumper of your car, your client’s car, that doesn’t seem like a really awful thing to do until you point out which you can do because you’re asking them to decide there was negligence so which means you can point out the worst things that very same act could have caused. If your client is stopped at a red light and somebody bumps you from behind at 7 miles an hour, that doesn’t seem like a very egregious act until you show them that without the client there, they would have run over the three children in the crosswalk and now texting as you’re rolling up to the stoplight is a horrible thing because you can kill children or whatever, and it doesn’t have to be things that were in that specific situation. It’s the consequences of not looking. What’s the worst things that can happen from the wrongful act? So, defendant conduct is one of the great drivers and the other and if you’re not really familiar with the laws and how to do this and how to get this stuff in, I’m not going to have time for it today. Maybe, we could do another, you know, some type of session on just this topic. There are other sources to learn about it. Part of the purpose of compensation and you should be able to tell the jurors this in closing is deterrents. We want the world to be a safer place for us and our kids. So, you’re not asking for money to deter. You’re asking for money to make your client whole. I’m not sure you should use that phrase, but that’s what you’re asking for money for, for compensation. However, you are allowed to say that part of the reason, the public policy that you’re allowed to talk about, at least in closing the public policy for that the whole doctrine of compensation is that it will deter future bad conduct by the defendant and others exactly like punitive damages. There are important differences between that and punitive damages with a goal of compensation is at least half deterrents. And when I first taught that 20 years ago, I got incredibly got laughed off the podium, but, you know, as an outsider to the law, sometimes you spot things that have been neglected for a long time. So those two things are enormous damages conduct. Defending conduct, by the way, well, let me get not too far in with these are simply topics you all need to do for future study, but you can start using them basically now.

Sean: And I would imagine with all your consulting work around the country, you probably see some common examples of mistakes that plaintiffs’ lawyers make.

David: There is one huge thing that is very frustrating to anybody in this or any business who teaches and writes, it’s extremely frustrating. And that is that you all forget about 90 percent of what you’ve read that you liked and what you listen to in seminars and webinars and podcasts and all that and the reason you forget them is because when you’re listening and you’re all probably doing this even now, you’re relating what you’re hearing directly to a case you’re working on, which means you’re paying more attention to certain things and not others and so much of what and the other reason you forget as time goes by and you forget, you know, if you’ve read any number of books, if you read five or six books, if you’re read Damages, Rules, or Reptile, you know listen whatever your five, six, seven, eight favorite books are, what I am telling people now and is making an enormous difference for them is once you’ve read the book once carefully and highlighted it and taken your little notes in the margins so they’ll be there. As you’re preparing for any new case, not just for trial, but for depositions as well, because you’re going to find great arguments to use in depositions once you’re preparing for any case take a half a day. Yes, a half a day and no, you don’t have a half a day, but this goes to how good you are as a lawyer and simply quickly page through every one of those books, topic lists. You don’t have to read everything. Just look at the topic list with that specific case in mind. So, you quit forgetting things. I cannot tell you how many times I will sit at a seminar and hear somebody say, oh, I got this great new idea and I don’t want to be rude and say, well, it’s on page thirty-seven of Rules of the Road or that’s chapter nine of Damages or whatever and it’s been around for years and I’m watching everybody write it down because they’ve never thought of it, which means they have been using it and so it’s like anything that happens in college, you remember five percent of later on unless you use it. So, get back to that source you have. Have a special shelf where you keep your special advocacy books and your notes and all of that stuff, your notes from seminars and scan them to yourself review them all quickly to yourself before every single trial, or if you do a lot of the same trials before kind of trials before every few of them. There is wonderful stuff out there. I think the proudest achievement of my life is that Damages started the fad. I guess it’s a fad of everybody who had good stuff to say of writing them down or teaching them writing down, putting him in books. And now if you’ll look at even a shelf like the biggest one of Trial Guides, there’s dozens of books out there that there’s gold in them, their books. So you don’t have to buy into every single thing everyone is saying, but the stuff that will be valuable to you, you’re the only judge and you can’t judge it if it’s flitted out of your head. And I assure you right now, if let’s say people say they love Damages, they live by it. I assure you, if I sat most of those people down and gave them an exam on the important, very valuable stuff, that’s in that book they’d all average about a sixty-five percent and you want the other thirty-five percent.

Sean I’ve heard this term premature advocacy.

David: Yeah.

Sean: What does that mean and why do plaintiffs’ lawyers in particular need to be aware of it?

David: Well, we’re the ones, I’m not a plaintiff’s lawyer, I’m a consultant but plaintiffs’ lawyers are the ones who come in with a bad rap. Tort reform is not dead unless you know how to deal with it in the courtroom, in which case it’s as dead as a doornail. But if you don’t know how to do that, and even if you do, when you first come in, all the myths of tort reform are in the juror’s heads. You are the least credible person in the building and so when you start with any kind of advocacy to early, if you have to do many openings or if you’re in Voir Dire or even in the first, third or so of opening, if you start asking the jurors to trust you, which you do when you say let’s say you start your opening by saying this is a case of a driver who didn’t look where he’s going. Now you’ve asked me to trust you. You have placed your credibility on the table. Gotten me thinking about it when you don’t want me thinking about it yet because you haven’t been able to establish it yet in trial. So, you’ve placed your credibility on the table when the only decision I can make if I’m most jurors is, oh, you’re one of those damn plaintiffs’ lawyers. Of course, you’re telling me whatever you’re telling me. In other words, I’m not trusting you because of anything you’ve told me about the case. I’m not trusting you because of anything I’ve seen about you. I’m trusting you because you’re a damn plaintiff’s lawyer whose trying to get a bunch of money and you lose that battle. And once you’ve lost that battle by placing your credibility on the table too early, you set up a primacy of belief, which is this is another one of those damn plaintiffs’ lawyers and that primacy of belief can last for the entire trial. Does it kill you all by itself? No. But boy, is like dodging bullets for the rest of the trial. So, don’t do it. Hold it off. If you do my version of an opening, the one that’s in Damages, you start there maybe by the end of part three, which is who we’re suing and why. Whatever kind of opening you’re doing. Don’t get into it too early. And yes, you can tell me, oh, I started plenty of trials that way and I did fine. Well, yeah, but let’s look at the other ones. Let’s look at how much better you would have done if you hadn’t done that. The fact that some of the fact that some bad thing has not killed you in trial doesn’t mean you should keep doing it again. Even if it’s worked for you a number of times, this is a much stronger way to go.

Sean: And I know I found myself writing opening statements and slipping into advocacy and coming back to one of the images you use in Damages, which is could you see it with a video camera?

David: Yes. And let the jurors, I’m not going to talk today about it, but if you do not, if you’ve not, if you don’t know how to do a process at the beginning of opening called, alignment, alignment. Let me know or let the association know and they will get a hold of me and I will send you the article on how to do alignment. It’s probably the most important thing that I’ve ever developed and what it does is by the end of the first minute, two, three, four, depending on the case, it has the jury making its own conclusion that it’s a conclusion. It’s almost impossible for the defense to make it go away, that the defendant did indeed do something wrong in this case and once they’re there for the reasons explained in the article, it is I hate to say this, it is very hard to lose. I know that sounds like an exaggeration. It’s not. Once a jury comes to what they regard as their own conclusion about something, you have set up a power that something is that the defendant did something that has to do with this case wrong, did something negligence did something bad that hurt somebody. Once they decide that on their own, not because the judge says that’s what the case is about, not because you’ve said it, not anything like that. Decide on their own. That is the gold standard for the first three minutes of opening. Two, one four whatever amount of time you need to do alignment. That is the gold standard. If you can do that at the beginning of opening, your career will change if you can’t do it and then the battle goes on forever.

Sean: So, if we’re talking about the defendant’s conduct right up front, at what point do we get around to telling the story of our own client?

David: Well, for the same psychological reason you delay talking about your client and the reason is this, jurors are sitting there knowing they have to make a decision. They’re looking to be able to make a decision right from the beginning. Being undecided about something is an uncomfortable position so both consciously and unconsciously, they are working to try to find an easy way to decide the case, because then they can relax for the rest of the time. They don’t have to listen and if they don’t listen and you’re the plaintiff, you’re screwed. When you talk about anything first, whatever it is, early on, jurors use that information to make their decision. This is called availability bias. You use the information that you have much more heavily, obviously, than information you don’t have. So, if you start by saying, here’s all the terrible things that happen to my client and she’s in bed and let’s go into her house and look at terrible shape she’s in and in the sick room and she got up that morning, on the negligence side, she got up that morning to take her a little baby to school and made her husband lunch and had a fight with her neighbor and then, oh no, no, take out the fight and did all those nice things because you’re trying to humanize her by the time you get the little kid to school, which is one minute before the wreck the jurors are blaming her. They will find a way to blame her. If you talk about your client too much, the jurors will find a way to blame your client, who was sedated, under anesthesia on the operating table and the negligence occurred. They will blame your client and that little piece of blame can grow, but it won’t shrink throughout trial, and that can, even if it doesn’t cost you the case, takes your verdict way down, even if there’s no comparative issue, it can take your verdict way down because they’re just sitting there saying, well, you know, she did this, she did that and that’s probably or maybe what led to it so I just can’t go to the amount of money these folks are asking for. It’s an extremely important principle.  It’s explained thoroughly in the Damage’s book and elsewhere. Please don’t fall into that trap. Do not, we don’t even let you, if we’re working with you and helping with your opening, we don’t even let you use your client’s name until after the jury, after alignment, until after the jurors have come to their own conclusion that the defendant did something negligent that hurt her, then you can start using her name. We want no focus, no focus at all on your client.

Sean: The final topic for today and we could probably do multiple podcasts on this particular topic, and that is, we live in a remarkable time in American history. How, what kind of sense can we make of the Trump era and its effect on juror attitudes?

David: Well, first, let me warn you off one thing, and that is the fact that somebody is a Trump juror does not at all make them a bad juror. It will depend on the issues of the case just as if they’re an anti-Trump juror, that some of the issues of the case might make it. That’s not the problem. The problem is not that Trump or pro Trump or conservative or liberal or whatever in and of themselves can hurt you in the case. I mean, one of the things we’ve learned in the past 10 years is that our best jurors, in fact, are conservatives for a whole variety of reasons and that’s an hour seminar in itself. But they are if you know how to deal with them, what the biggest problem is right now, and it is a growing problem and I think it’s going to get worse and worse no matter what happens in the 2020 election. The polarization of this country has been accomplished. And if it’s going to heal, it’s going to have to get a lot worse first and obviously, it’s getting worse every day and it’s not going to heal quickly. It’s going to take years and maybe a decade or two. Hopefully it’ll happen. How does that polarization affect us doing trials? And it’s really quite simple. Jurors look each other up online very quickly these days. I’m sitting next to this guy let’s find out who the hell he is, goes to his Facebook page, finds out his attitude of yours, too, by the way, as well as your website and all that. Keep your political attitudes out of the damn media off your web page, just don’t do it. People get upset when I say that I have my first amendment rights. Yeah, you do, but you better warn your client before you sign the client up and if you don’t and you’ve got your opinions on all there, you better make sure your insurance carriers pay it up because you are hurting your client’s case. As far as what’s going on on the jury. If I juror number two, figure out that you juror number three are on the, and we’re both passionate about it. If I am a passionate pro Trump person. I am not, but let’s say I am. It’s a big hypothetical and I find out that you are an anti-Trump person I’m not going to agree with you about anything. I’m not going to like you. I’m not going to want to go along with you on any topic in the world. Certainly not a topic like the one in this case. I don’t want to come to an agreement with you bastards. And I’m not saying everybody is like that, but a good forty, thirty, forty percent of the population, almost every place falls into that category. And you cannot tell when it’s there because you can only question so far into political beliefs. You don’t want to question about them so overtly that you initiate the battle right there in Voir Dire because you can’t get rid of all those people. So what you need to do instead is to have an armament of techniques that give the jurors higher priorities with issues involving this case than they do with issues surrounding Trump. Now, just think of what I just said. You need to find things that are more important, more urgent, more pressing that people care more about than they care about being pro or anti the Trump thing. That is of huge order, we know how to do it. I think I may have taught some of it in an earlier Ohio webinar, but that is material for a different seminar. For right now, what I’m saying is if you don’t know how to do those things, I probably should do an article, I could just distribute to everybody. Maybe I’ll try to do that in the next couple of weeks or months or something. At a minimum, do not ask questions in Voir Dire, that elicits that can elicit somebodies political tilt. Is it important to know it? It might be. It is even more important to keep that battle off the jury if you can. We are always susceptible to current events and what’s going on in culture and in society because jurors are all part of that world and that becomes a large part of their decision-making resources. But this is not like anything I’ve seen of or heard of before. It’s sort of like if you were trying to do a trial, and there are great stories on this in a split state like Missouri just before the civil war. You better not have pro north and pro south jurors on your jury at the same time. If you need unanimity, on the other hand, if you’re a defense attorney, criminal defense attorney this may be a good thing and makes it harder for prosecutors to get convictions. But those of you doing plaintiff’s work, that’s not an issue. You need to unify your jury as one of the most important trial strategies people learn. I’d say the Spenc Ranch and we teach it in other places is to bring that jury together and there’s a force out there that has cleaved them too many of those jury’s before they even come in. So that is where Trump world has left us. This is where you need the best of your techniques that go to things that jurors really care about. You don’t discuss this political issue. You come up with techniques that are more important, such as, for example, a current major danger in the community that can be caused by the kind of negligence the defense just did. I can say if I got to worry about my kid walking to school because of the kind of thing the defendant did, then I will unite with this son of a bitch who’s on the other side of the political thing so that I can try to make sure that happens. That’s an example of a unifier and there’s a lot of them.

Sean: Well, David, this is fascinating and we could go on forever, but we appreciate it very much for being here as a guest on our special fiftieth episode of Civilly Speaking.

David: Let me say just one more quick thing since I’ve gone so fast, if you have any answers, any questions, I can answer quickly, I don’t have to turn on my consulting clock to do that. Artemis my partner, Artemis and I like to get questions we can answer quickly. They help us a lot on our teaching and our consulting. I’m at jurywatch@gmail.com. Artemis is A R T E M as in Mary I S at consult M M B like mother mother basketball dot com (artemis@consultmmb.com) or just contact the association, the Ohio association, they’ll tell you how to get a hold of us. Please don’t hesitate to do that. This is not trying to snare you in for consulting. We don’t turn on the clock for short answer questions. We love to get them. Thanks very much for asking me to do this.

Sean: Thank you, David and thanks to all our listeners out there. If you like our show and want to learn more, check out civillyspeaking.com and please leave us a review on iTunes. We’ll see you here on the next episode of Civilly Speaking.