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Bar News - October 14, 2011

The Reptile Listens: Review of The Reptile a DVD Series on Opening Statements by David Ball


If you want to improve your trial skills, but donít want to read David Ballís book on Damages, and donít want to watch any of the DVDs that Ball, Don Keenan and Charles Allen have developed to detail the power of their ideas on opening statements, then all you have to do is learn four key points.

First, as a general rule, do not advocate in the opening Ė it is too soon. You run the risk that you will be the living embodiment of the kind of lawyer every juror mistrusts (the manipulative liar who will say anything to win).

Second, do not criticize the defendant in the opening Ė it is too soon. Jurors want to hear what happened, not what you think about it.

Third, do not give too much information, just the important facts.

Fourth, keep the story simple and clear.

But if you really want to understand how to put these ideas into practice, you really need to watch the DVDs to see how David Ball helps Atlanta attorney Charles Allen refine his opening in a medical malpractice case. Hereís the background.

"Tort reform" propaganda has made it difficult for even the most worthy of injured citizens to get a fair shake from a jury. Emerging from years of discovery warfare (which often includes repeated defense delays and discovery abuse with little help available from an overwhelmed judiciary), the eager plaintiffís attorney finally gets to trial, only to face a jury suspicious of "frivolous" claims and greedy lawyers. Plaintiff verdicts are difficult to obtain and often less than satisfying.

A number of brilliant strategies have recently been developed to counter the anti-plaintiff bias pervasive in our courts. Taking cues from marketing innovators like Clotaire Rapaille (The Culture Code), and taking lessons from the great trial lawyers (Moe Levine and Rick Friedman, for example), trial consultant David Ball and Atlanta trial superstar Don Keenan are sharing what they have learned. David Ballís book on Damages (third edition just published by NITA) provides terrific insights. He and Don Keenan are working together to share their successful strategies. Their latest work centers on awakening in jurors what they refer to as "the Reptile" Ė the survival instinct that demands justice. Don Keenan and David Ball present their ideas at seminars across the country, welcoming trial lawyers to"the revolution" that will once again give injured citizens a fair chance at trial justice. Recently taking their act to a larger audience, Keenan and Ball have collaborated on a series of DVDs about opening statements. (This set follows the first two video sets by Ball and Keenan - Reptile Witness Preparation and Reptile Voir Dire.)

The opening statement DVDs (running almost nine hours in total) take us behind the scenes as trial consultant David Ball works closely with trial attorney Charles Allen (senior trial lawyer in charge of the trial team at Don Keenanís Atlanta law firm) to prepare an opening statement for a medical malpractice trial. At the start of the video, Allen explains that before beginning his work with David Ball, he read, cover-to-cover, the latest edition of Ballís book on Damages (over 500 pages long). Allen then spent roughly 60 hours drafting his opening statement. It was only at that point that he began his work with David Ball, who brings a theater directorís intelligence to the project. Watching the video, I thought at times that I was actually witnessing a theater director work with a playwright. As Charles Allen reads his overly detailed original opening, David Ball reacts to virtually every statement. Every small point is reviewed and clarified, at all times keeping in mind that the audience is the jury primed to be skeptical. As Ball repeatedly notes, the Opening is not the time to argue. The Opening is the time to let the jury get to know you as the caring teacher who can be trusted to tell the truth.

The work that Charles Allen does with David Ball brings to life Chapter Five of the Damages book, where David Ball presents an "Opening Template" that teaches us to develop opening statements in seven parts: explain the primary rules involved in the case, describe the story of what the defendant did, identify who is being sued and why, outline the defenses to be raised (and explain why those are not convincing), introduce the facts of causation and damages, describe what the plaintiffís life was like before, and tell the jury what they can do about it. In his comments on the DVD introducing various sections, Don Keenan reminds us how important it is to use these elements in our openings, and as guides throughout trial.

Charles Allen shows a great deal of patience and respect as David Ball slashes and burns through the original opening. But at times, attorney Allen is clearly frustrated with the process. After all, David Ball criticizes virtually every line of the opening Allen has painstakingly drafted. But the lessons are important. Continue trying cases in the traditional way, and you will continue to win small verdicts or lose cases you might win. These DVDs give terrific insights into a better way.

I donít recommend viewing the entirety of Disk 3 because it consists primarily of attorney Allen reading his original scripted opening statement. David Ball takes this on immediately, advising Allen that heís going to lose the jury with all that detail. But the introductory remarks from Don Keenan in both chapters of this disk are worth the price of admission.

Iím not sure how many of us will actually make the time to invest the work needed to understand the ways of the Reptile, but spending time with the DVDs and books by Ball and Keenan provides an invaluable education into the way modern juries view us, and the cases we work so hard to build. Highly recommended for all trial lawyers!

David Slawsky
The Reptile - a DVD series on opening statements, by attorney David Ball, with attorneys Don Keenan and Charles Allen, is available at

David Slawsky is a partner at Nixon, Raiche, Vogelman, Barry, Slawsky & Simoneau in Manchester.

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