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Influential North Carolina trial consultant David Ball says the results of his latest research will transform jurors’ attitudes in personal injury cases.

Ball’s book on damages is considered essential by many plaintiffs’ lawyers. His new book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution,” refers not to lizards, but to a concept developed by French anthropologist turned marketing guru G. Clotaire Rapaille.

The “reptilian brain” is the most primitive part of the brain, according to Rapaille. In decision-making, it is the part of the brain that takes over when a decision involves safety or survival – triggering the “fight or flight” syndrome.

Applying the concept to the courtroom means convincing jurors that their decision in a civil case involves the survival of their families and communities.

Co-authored with Atlanta personal injury lawyer Don Keenan, “Reptile” is due out  this spring.

Focusing on the importance of jurors’ verdict in terms of public safety “leapfrogs the biases,” Ball commented. “It pretty much means tort reform is going to have close to a negligible impact on juries.”

Community safety

“When you show jurors that what is at stake is community safety, when they see that what somebody has done is a safety rule violation, for example, which almost every negligence cases is, the juror begins to see just how serious the actions of the defendant were,”  Ball explained.

Jurors grasp the concept easily in criminal trials.

“When you are sitting on a jury and looking at a violent criminal you realize that what that person does is a real menace to you and your community,” Ball continued. “You want to make sure that the person who committed the crime meets their full responsibility.”

It’s up to plaintiffs’ lawyers to make jurors recognize the threat defendants in civil trials can pose, according to Ball.

“The reason trials are public is because they have an effect on the community,” he noted.

The “tort reform myth,” however, has convinced about a third of jurors that the effect of civil trials is bad, Ball said.

Begin at the beginning

Ball, who is a frequent lecturer, has been teaching attorneys to use his concept throughout a trial.

For example, during voir dire, the attorney could say something like, “Folks, very often trials like this have an effect on the community. Some people think that’s a good thing, some not a good thing. Which are you closer to?”

Then, during opening argument, the lawyer could establish that a violation of a safety rule can affect the entire community.

For example, Ball explained, in a case involving medical negligence in a birth, the lawyer could show jurors that a physician’s failure to follow every step of a differential diagnosis has serious consequences – not just in the labor and delivery room, but in the emergency room and every other department in a hospital.

In a premises liability case, he would advise the attorney to demonstrate how dangerous the same violation would be in a school full of children.

“We’re not bringing in other cases,” he said. “We’re simply demonstrating how dangerous it is to break the rules.”

‘Stunning’ track record

Ball and Keenan have been testing the results of the “reptile brain” approach in focus groups and mock trials for about a year, along with personal injury lawyers James Fitzgerald in Wyoming and Gary Johnson in Kentucky.

“The track record so far has been stunning, even in real trials,” according to Ball. “The important thing is it doesn’t throw out everything else a lawyer does; it just re-focuses.”

In researching the concept, the group conducted a series of mock trials and focus groups in Lexington, Ky.

“We would take groups of 20 people. I would tell them about the case, then get a response on paper. Their response would be split,” Ball recalled.

“Then, [Don] Keenan would get up, spend about 30 minutes asking voir dire questions of the kind that gets them thinking about their own relationship to the case. And instead of being divided, they had almost all come over to our side,” he explained.
“What happened was that rather than thinking in terms of doing justice for some stranger that might have the effect of raising prices for their insurance, they realized, ‘This is about me,’” Ball commented.

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com

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