If you’ve spent any time in a personal injury courtroom, you’ve seen it. A plaintiff's attorney stands up, spends forty minutes meticulously detailing every broken bone and medical bill, and then looks at the jury with pleading eyes, expecting a massive award. But the jury? They’re checking their watches. Some are wondering if their car will get towed from the lot.
They aren’t heartless. They’re just bored and, more importantly, they don't feel like the money actually matters.
This is exactly where david ball on damages changed the game. Before David Ball—a guy who actually came from a background in theater and film—most lawyers treated damages like a math problem or a sob story. Ball realized it was actually a communication problem. Honestly, if you aren't using his methods, you're likely leaving your client's future on the table.
The "Fix, Help, and Make Up For" Framework
Basically, Ball argues that jurors aren't there to give a "gift" or a "windfall." That’s a defense word. Jurors are there to do a job. He broke this down into three simple buckets that every lawyer should have tattooed on their forearm:
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- Fix: Can we fix the problem? If a car is smashed, you fix it. If a leg is broken and can be healed, you pay for the surgery.
- Help: Some things can't be fixed, but they can be helped. Maybe the plaintiff will never walk again, but a specialized van or home modifications will help them live a life.
- Make Up For: This is the hard part. This is the "noneconomic" stuff. You can't fix a lost limb. You can't "help" the fact that a father can't hold his daughter anymore. So, you have to provide enough money to "make up for" the loss.
It sounds simple. Kinda too simple. But in practice, it’s a radical shift from how most people argue. It removes the "sympathy" element—which jurors actually resent—and replaces it with a logical, functional requirement.
Why Jurors Are Afraid to Give You Money
You've probably heard of the "Reptile Theory." Ball and Don Keenan literally wrote the book on it. The core idea is that humans have a primitive part of the brain focused on survival. If a juror feels that a defendant's conduct is a threat to the community (and therefore themselves), they are more likely to provide a verdict that "fixes" the danger.
But david ball on damages goes deeper into the psychological roadblocks. Why do jurors lowball?
It’s often "Juror Self-Protection." If a juror acknowledges that a random, horrific accident can happen to anyone—and that it's worth $10 million—they have to admit that they are also vulnerable to a $10 million catastrophe. That’s a terrifying thought. To stay sane, their brains try to find a reason why it was the plaintiff's fault, or why the injury isn't that bad.
Ball teaches you to dismantle this. You have to show them that the defendant's choices created the risk, not just some freak accident. You make it about the defendant’s conduct, not just the plaintiff's bad luck.
The Proportion of Time Rule
This is a big one. Most lawyers spend 90% of the trial on liability—who did it—and 10% on damages.
Ball says that’s a recipe for a "low-ball" verdict. If you spend all your time talking about the car crash and only five minutes talking about the life-altering brain injury, the jury subconsciously thinks the injury isn't the most important part of the case.
You've got to flip it. Or at least balance it. If you want a jury to value the damages, you have to spend a significant portion of the trial actually showing them. Not just telling. Showing.
The "Before and After" Witness
Don't just have the plaintiff cry on the stand. It feels performative. Instead, Ball advocates for "Before and After" witnesses. These are people who knew the plaintiff before the injury and see them now.
- The neighbor who used to see the plaintiff gardening every Saturday.
- The co-worker who misses the plaintiff's sharp wit.
- The high school coach who knows the plaintiff can no longer run.
These witnesses provide the "worthwhileness" of the money. They show the jury exactly what was lost without the plaintiff having to beg for pity.
The Danger of Compromise
One of the most interesting parts of Ball’s philosophy is his stance on "Compromise Kills." We've all seen it: a jury can't decide if the defendant is 100% liable, so they compromise by finding liability but cutting the damages in half.
Ball’s method is designed to prevent this "justice by halves." He teaches how to use voir dire (jury selection) to weed out the "compromisers" and "cap-seekers" before the trial even starts. You have to be brave enough to ask the hard questions. "Is there anyone here who feels that, regardless of the evidence, there should be a maximum limit on what a person can receive for a life-altering injury?"
If you don't ask it, you're just hoping for the best. And hope isn't a trial strategy.
Modern Updates: Damages 3 and Evolving Tactics
The legal landscape has changed a lot since the first edition came out in 2001. Tort reform, "nuclear verdict" headlines, and a general cynicism toward lawyers have made the job harder.
In David Ball on Damages 3, he integrated the "Rules of the Road" method. This involves establishing clear, undeniable safety rules that the defendant violated. If you can get the defendant’s own expert to agree that "A driver should always look before changing lanes," and you prove they didn't, the liability becomes a "rule violation" rather than a "mistake."
This connects directly back to the damages. A rule-breaker must "fix, help, and make up for" the harm their violation caused. It takes the "maybe" out of the equation.
Actionable Steps for Your Next Case
If you're looking to actually implement this, don't just read the book and put it on a shelf. Start here:
- Audit your Opening: Are you spending enough time on the harm? If your opening is 30 minutes, at least 10 should be spent on the "Fix, Help, and Make Up For" aspects.
- Find Your "Before" Witnesses: Identify three people who aren't family members who can speak to who the plaintiff was before the incident.
- Kill the Bullet Points: Ball is a theater guy. He hates boring PowerPoint slides. Use visuals that evoke the reality of the loss, not just a list of medical codes.
- Re-read the Voir Dire section: Most cases are won or lost in jury selection. Focus on finding the jurors who have a "pre-set" limit on what they think a human life or a "pain and suffering" award is worth.
At the end of the day, david ball on damages isn't about "tricking" a jury. It’s about removing the obstacles that prevent them from being fair. It's about giving them a clear, logical path to doing the right thing. If you treat them like the "fixers" and "helpers" they want to be, they'll usually reward that trust with a verdict that actually reflects the loss.
Next Steps for Legal Professionals:
Evaluate your current case load and identify one "Before and After" witness for your most significant injury case. Draft a three-minute section of your opening statement using the "Fix, Help, and Make Up For" terminology to see how it shifts the narrative from sympathy to accountability. For those heading to trial soon, review the "Preponderance Template" in the latest edition of Ball's work to ensure you are setting the correct burden of proof in the jurors' minds from minute one.