David Ball on Damages in
Civil Rights Cases

National Police Accountability Project
A Project of the National Lawyers Guild

Thursday, October 15, 2009
Marriott Renaissance Hotel Seattle
Seattle, WA 98104

October 15, 2009
Dear CLE Participant:
National Police
Accountability Project
A Project of the National
Lawyers Guild

Executive Director
Brigitt Keller
Board of Directors:
President
Howard Friedman
Vice President
R. Samuel Paz
Vice President
Michael Haddad
Treasurer
Brian Spears
Secretary
Michael Avery
Cynthia Anderson-Barker
John Burris
John Burton
Andrew Clarke
Hugh Davis
Robert Giroux
Janine Hoft
Robert Mann
David Robinson
Brian Spears
Paul Wright
Advisory Board:
Judith Berkan
Peter Berkowitz
Karen Blum
Richard Emery
David Gespass
Ron Hampton
James Harrington
Mary E. Howell
Jonathan C. Moore
Hector Piñeiro
David Rudovsky
Barry Scheck
Carol Sobel
G. Flint Taylor
Ellen Yaroshefsky

Thank you for joining us today. The National Police Accountability Project
(NPAP) has offered CLE seminars since the project’s inception in 1999. This year,
NPAP is presenting David Ball on Damages in Civil Rights Cases. By providing a
forum to learn from the nation’s most influential and respected jury researcher and trial
consultant we hope you will acquire techniques and strategies to deal with the
worsening consequences of tort-“reform” and to help you win even your toughest
cases.
The National Police Accountability Project, a project of the National Lawyers
Guild, is a non-profit organization dedicated to ending police abuse of authority
through coordinated legal action, public education, and support for grassroots and
victims organizations combating law enforcement misconduct.
The NPAP has members nationwide and is steadily growing. The project
offers a variety of services to its members. Our member only listserv has become a
tremendous resource to share legal analysis, litigation strategy and information
regarding expert witnesses and other topics. The Section 1983 Subscription Series,
quarterly updates on critical Section 1983 case law developments, can be accessed by
members and non-members for an additional annual fee; open to everyone we publish
Amicus Briefs. To find out more about our organization please visit our web page at
www.nlg-npap.org.
As always, many people have worked to make this event possible. Our thanks go to
speaker David Ball who charged a discounted fee our small operation can afford and to
Kelly Ramsdale (Kelly Ramsdale & Associates, Denver CO) and Jackie Bellows
(VanPelt Corbett Bellows, Seattle WA) who generously sponsored this event; to our
CLE committee members Fred Diamondstone, Howard Friedman, Julia Sherwin, Brian
Spears and Paul Wright who have worked with me for many weeks; to Lembhard
Howell for his introduction and to Howard Friedman for the moderation. Special
thanks go to our hosts, the national office of the NLG and the Seattle chapter, as well
as Hiedi Simon, the NLG convention planner, who always makes sure that NPAP has
fine accommodations. Without volunteers, nothing goes in the non-profit world many thanks go to King Downing, Tim Philips and Rachel Sledge for helping with
registration and tying loose ends. We are grateful to John Burton and Hank Sherrod for
sharing trial documents for this publication. Finally, we are indebted to
the American Association for Justice and TRIAL magazine for the permission to
reprint David Ball’s article.
The National Police Accountability Project
Brigitt Keller
Executive Director
14 Beacon Street Suite 701 • Boston, MA 02108 • Tel: (617) 227-6015
Fax: (617) 830 0260 • www.nlg-npap.org • npap@nlg.org

David Ball on Damages in Civil Rights Cases
TABLE OF CONTENTS

PUBLICTIONS BY DAVID BALL
PUBLIC RESPECT AND TRUST
How to Restore and Deserve It
By David Ball, Ph.D.
Miller Malekpour & Ball, Durham
MAKING PREPONDERANCE WORK
Motivating Jurors
By David Ball, Ph.D.
Miller Malekpour & Ball, Durham
Trial Magazine
March 2008 | Volume 44, Issue 3
Reprinted with the permission of the author

DAMAGES AND THE REPTILIAN BRAIN
By David Ball
Trial Magazine
September 2008 | Volume 45, Issue 9
Reprinted with permission of TRIAL (September, 2009)
Copyright American Association for Justice,
formerly Association of Trial Lawyers of America (ATLA®)

TRIAL DOCUMENTS: Practical applications of David Ball’s methods and strategies
Plaintiff’s Requested Voir Dire Questions
KRIS THORNTON v. PHILLIP KING; JACKIE RIKARD; and RONNIE WILLIS
CV-07-S-0438-NW; U.S. DISTRICT COURT N.D. OF ALABAMA

NPAP member attorney Henry F. Sherrod III, Florence, AL
Opening Statement
HESTON V. CITY OF SALINAS C-05-03658-JW
US DISTRICT COURT N.D.OF CALIFORNIA SAN JOSE DIVISION

NPAP member attorneys John Burton & Peter Williamson, Pasadena and Woodland Hills, CA

About the Faculty
Speaker: DAVID BALL is the nation’s most influential and respected jury researcher and trial
consultant. His book David Ball on Damages, which is the best-selling trial advocacy book ever
written, has revolutionized trial advocacy across the country, and provided the first and most
effective for effectively dealing with the worsening consequences of tort-“reform.” Since 1991 Dr.
Ball has consulted on civil and criminal cases across the country. He founded JuryWatch, Inc., now
called Miller Malekpour & Ball, the nation’s only three consultants who can provide case guidance
based on “Reptilian”-based methods. Dr. Ball teaches at law schools across the country, and is the
nation’s most in-demand CLE teacher. His three trial advocacy books (and his theater text analysis
book) all remain best-sellers. He came to jury consulting from a long career as professional theater
director, producer, theorist, and writer. He initially trained in engineering and physics, his favorite
job was taxi driver in the early 60s, and his daddy was a Catskill Mountain bootlegger.
Introduction: LEMBHARD HOWELL has been a lawyer in Washington State since 1966. He
earned a bachelor's degree in History, with Honors, from Lafayette College in 1958 and a law degree
from New York University in 1964. He began his legal career as a law clerk for the Washington
State Supreme Court, then worked as an assistant Washington State Attorney General. In 1969, he
and former Congressman John Miller formed the law firm Miller & Howell, which later became
Miller, Howell & Watson. In 1973 Lem began his own firm. The Law Offices of Lem G. Howell,
P.S. is representing people who have been injured by the negligent and wrongful acts of others and
people who have had their civil rights violated, among them victims of police misconduct (most
recently Bradford v. Seattle, USDC, W.D. Wash., No. C07-365-JPD (July 16, 2008); 2008 U.S. Dist.
LEXIS 65648). He is a founding member of the Loren Miller Bar Association (Washington State's
African-American bar), a life member of the Association of Trial Lawyers of America, a founding
member of Trial Lawyers for Public Justice, an Eagle member of the Washington State Trial
Lawyers Association (WSTLA), an advocate member of the American Board of Trial Advocates
(ABOTA), and a member of the Damage Attorneys Round Table. Lem has received many awards
and honors, among them the Trial Lawyer of the Year for both WSTLA (1986) and the Washington
chapter of ABOTA (1994). Lem is also annually listed in America's Best Lawyers and as a "Super
Lawyer" in Washington Law & Politics.
Moderation: HOWARD FRIEDMAN is the principal in the Law Offices of Howard Friedman
P.C., a civil litigation firm in Boston, Massachusetts. Howard’s practice emphasizes representing
plaintiffs in civil rights cases. He has represented the plaintiffs in five class actions alleging
unconstitutional strip searches at county jails and he has handled about a dozen individual cases
alleging unlawful strip searches in prisons, jails and schools. He is the President of the National
Police Accountability Project of the National Lawyers Guild. He served as chair of the Civil Rights
Section of the Association of Trial Lawyers of America (ATLA) (now the American Association for
Justice). He is a graduate of Northeastern University School of Law and Goddard College.

PUBLIC RESPECT AND TRUST
How to Restore and Deserve It

David Ball, Ph.D.
Miller Malekpour & Ball, Durham

David Ball, Ph.D., one of America’s most-respected trial consultants, is a three-time bestselling trial advocacy author and jury researcher. His book David Ball on Damages has
changed the face of American trial advocacy, and he is the country’s most in-demand
CLE lecturer. In 2002 he received NCATL’s Charles Becton Excellence in Teaching
Trial Advocacy award. With partners Debra Miller and Artemis Malekpour he consults
on civil and criminal cases throughout the US and Canada.

Talk doesn’t cook rice.
– Chinese proverb
Deeds, not Words
– Max Roach (American jazz musician and composer)
You know I’ve heard every line
No baby, not this time
If you want me like you say you want me
Well then, you gotta show me . . . .
I see you there talking loud
But you got to show me.
–Janet Jackson
Please don’t explain. Show me!
– My Fair Lady
Nay, Everyman, I will bide with thee,
I will not forsake thee indeed;
Thou shalt find Good Deeds a good friend at need.
– The character Good Deeds in Everyman, a medieval drama
The Lord is a God who knows, and by Him deeds are weighed.
– 1 Samuel 2:3
Just do it!
– Nike

Words are no deeds.
– Shakespeare (Henry VIII, III,2)
Words to the heat of deeds too cold breath gives.
– Shakespeare, (Macbeth, II,1)
Talk is gibber-jabber. Action is truth.
– Catherine Walsh, 3rd grade teacher
There is no effective weapon against the persuasive power of good works.
– David Ball

THE PROBLEM
A third of jury-eligible Americans hate and fear trial lawyers. This is because of what they think
you do. That third “knows” you endanger their well being: their jobs, their health care, their
families, their religion. They “know” you make your exorbitant living though trickery and sham
cases. They “know” you profit from the misery of others.
A decades-long campaign against you has brought them to this point. That campaign –
carefully planned and executed – was unchallenged until a few years ago. By then it was too late
to talk our way out of it. The decades-long, one-sided case had convinced a third of Americans
that trial lawyers are a serious public menace.
As with all big-lie campaigns, the tort-“reform” campaign has been based on grains of truth in
order to make it credible. Some greedy trial lawyers do misuse their power. Some verdicts are
or seem outlandish and harmful. Many trial lawyers and their organizations support liberal
politicians and judges who threaten the core values of many people. Medical liability insurance,
products, services, and personal insurance have indeed gotten more expensive. And a few years
ago there was indeed a shortage of flue vaccine. The propagators of tort-“reform” brilliantly and
without opposition spun and distorted such truths into a full-blown, nightmarish mix that turned
trial lawyers and judges into terrorists – at least in the minds of a third of the public.
Tort-“reform” beliefs are now so firmly embedded – and so firmly supported by a third of every
community – that they cannot be changed by anything our side says, no matter how we say it or
how often. It’s too late for words. When a trial lawyer or a trial lawyer’s organization uses only
words, things get worse.
When a politician you fear and hate talks about justice, decency, and fairness, you hate that
politician even more for what you perceive as his or her hypocrisy. That’s what the poisoned
third does when they hear us talk about justice or any of our other values. In their eyes, we are a
poisoned source - -and no one trusts the words of a poisoned source. Not ever.

For example, try arguing with an extreme believer on the other side of your political fence. As
you argue, he will erect a higher fence. If you think you or your organization has ever changed a
tort-“reformed” juror’s mind with just words, the only fool in that interchange was likely you.
Worst is when trial lawyers and their organizations rely on shallow platitudes. For example:
“We’re here for the little guy.” Tort-“reformed” citizen response? “Yeah, you love it when a
little guy gets hurt because you make lots of money.”
Or, “We’re here to protect families.” Tort-“reformed” translation: “Yeah. Your families. Not
ours. You’re taking away our health care, our jobs, and our financial well-being.”
Or, “We’re here for justice.” Tort-“reformed” translation: “You love justice because you make
a fortune from it.”
You can even lose your case simply by starting your opening with, “Ladies and gentlemen, the
truck driver’s carelessness hurt my client and we are here for justice.” Tort-“reformed”
translation? “Here’s one of those greedy lawyers we’ve been warned about.”
When it comes to public opinion, not even facts help us. In every state, a third of the public
believes that trial lawyers are driving down the number of physicians in the state. The fact is
quite the opposite: the increase in the number of doctors in every state but one is unprecedented.
But when we say that, no one believes us, because we are a poisoned source. “When a trial
lawyer uses a fact or statistic, it is a lie.”
In our younger years, most of us believed this: “If I just had the chance to sit down and explain
to the other side what is wrong with their point of view, they would see the truth in what I say.”
Remember when you thought that? Long, long before your first trial, I bet.
Not even Gandhi, Jesus, or Martin Luther King Jr., – extraordinary deployers of words – could
rely on words alone. They needed acts and even miracles to persuade. Fortunately, we don’t
need miracles. We need just some deeds. Good deeds. Deeds first. Then, if still necessary,
words, messages, communications. Use the reverse order at your peril. That is the single most
fundamental and universally accepted principle of persuasion.

THE SOLUTION
So what do you do? What should your organizations do? What can open the minds of the
poisoned third of the public enough to grant admission to our good words, arguments, and facts?
How do we regain the ground lost to the decades-long campaign about our supposed evil deeds?
Simple. We just need to do things that help others in ways that do not simultaneously help
ourselves. We need to regularly, publically, and selflessly commit altruism.

In playwriting and screen writing, this foolproof method is called “Save the cat.”1 The principle:
You easily persuade an audience that a character is good by showing the character doing
something selfless or even disadvantageous to himself. It works in real life even better than in
the movies. (It’s the opposite of kicking the puppy.)
How do we know it’s foolproof? From Shakespeare. From marketing experts. From
psychologists. From history. And from those individual attorneys who have already been doing
it. Selfless good works is even the prime ingredient of classical oratory, where the focus is
always on deeds, never on words – no matter how oratorically soaring the words may be.
Re-read Mark Antony’s “oration” – how he turned the angry Roman crowd that had been
cheering Caesar’s assassination. Mark Antony’s brilliance lay not in his words. The crowd did
not turn his way until he pointed out what Julius Caesar had done.
When WalMart’s reputation was sinking to the point where it affected sales, rather than
mounting more sales campaigns, WalMart started doing good things, such as improving
employee health benefits. And who was first to show up after Hurricane Katrina? WalMart!
With three huge 18-wheelers loaded with fresh water. And the same heartless corporation that
forced its employees to go to government programs rather than provide health care benefits has
now mended its bad reputation by giving out four- dollar prescriptions.
When mid-east terrorists found that their violence was alienating their own supporters, the
terrorists started programs of medical help, schools, and other social services for the populace.
The terrorists knew better than to rely on words.
All good persuasion uses effective framing, well-chosen words, and active themes. But without
a focus on deeds, all the framing and words and themes – and even facts – in the world are
useless. Just as you can’t win a case by stamping your foot and saying, “My client is right so
give us money!” neither can you change the minds of tort-“reformed” jurors by stamping your
foot and saying “Trial lawyers are good, so trust us!”
I think I hold the world’s record for the number of tort-“reformed” jurors interviewed in depth. I
know every reason for which they fear and loathe you. I know their ugly reactions when they
hear our words about how good we are, and about how mistaken their conceptions about us are.
They carry their reactions right into trial. Every tine.
This kind of information never surfaces in the kind of polling or focus groups our organizations
do or sponsor. Such studies are for different – and necessary – purposes. But they illuminate
nothing about how citizens influenced by tort-“reform” think and decide when they become
jurors. So we had to do our own jury research. As a result, we know what can change the
hearts and minds of the public about trial lawyers. We have tried it with the worst of those
jurors, and it works. Here’s what we have found out:

1

See Blake Snyder, Save the Cat.

THE BIG THREE
Trial lawyers need to do three things.
First, and right now, trial lawyers need to learn how to conduct trials so as to persuade the
poisoned jurors to side with the plaintiff. This can seem impossible but the most recent research
has shown us how to do it.2 If you have a trial coming up, you cannot delay learning this new
material.
Second, trial lawyers need more than ever to financially support the legislative efforts of groups
such as AAJ and the state trial lawyers organizations to fight anti-litigation legislation. Trial
lawyers who do not – yet reap the benefits of those fights – are leeches.
Third, trial lawyers and their organizations must use effective methods of changing the minds of
the poisoned third of the jury pool. This does not means words. It means good works. No
words or messages – unless accompanied by an equal or greater dose of good works.
We have no need to match the increasing tens of millions the insurance companies, chambers of
commerce, and national and international corporations continue spending to wipe out trial
lawyers. Unlike any campaign of words, our good works will outweigh every last cent the other
side can spend. There is no effective weapon against the power of selfless good works.

DOES IT WORK?
Come back with me to the early 1990s. An Atlanta attorney – Don Keenan –is doing some
playground injury cases: kids who got mangled or killed because half-ton dead branches will
eventually fall, or because jagged pieces of metal fence will poke out young eyes, or because of
any other of a number of other common and commonly ignored playground dangers.
Keenan wins the cases he tries, so he’s doing right by these kids. But in the dark of night,
Keenan finds himself thinking, “Do I really want to lie on my death bed some day thinking that
all I’ve been in my life is the guy who comes around afterwards to clean up? Just the garbage
man?” Keenan decided it was not enough. So, he thought, Why not keep kids from getting hurt
in the first place?
Now there’s an act against a trial lawyer’s self-interest! Prevent the very kind of harm that
provides his cases!
So Keenan printed up a playground safety check-list. He distributed copies all over the place –
so parents could take the list to their kid’s playground and check off every safety-required item.
2

If you are a member of the North Carolina Advocates for Justice (formerly NCATL),
you can access its 9/30/08 Med Mal seminar (med mal attorneys only) and its 11/7/08 David
Ball on Damages seminar. Both explain the new methods that have tilted the playing field in our
favor. If you are not an NCATL member, you can purchase DVDs of my AAJ Damages
Seminars. Or come to damagesforum.net for other options NB: Do not use a source more than
six months old, since the research is rapidly creating new developments..

No dead overhanging branches. Check!
No missing rubber safety tips.
No jagged fences.
No broken pavement.
Etc.
Any item on the list that a parent could not check off was to be reported to the principal, then the
school superintendent, then – if still necessary – the news media.
In this easy way, Keenan protected innumerable kids. And he showed that he was a caring
person. He never stood around proclaiming such counter-productive words as, “I care! I care!
Watch me feel how I care!” Instead, he acted – and to this day continues to act – to help more
and more – in ways that do not simultaneously enrich himself.
Because , as everyone knows, saving the cat does not help you when you’re paid to save the cat.
Aside from protecting innumerable kids, Keenan’s good works also gave him a foot in the door
of the tort-“reformed” jurors.
Over the years, Keenan did more. His Keenan Kids’ Foundation is a major public force in
protecting children in every way they need protecting. And his recent book – 365 Ways To
Keep Kids Safe – carries his work even farther.
Did Keenan’s good deeds help? Well, when he sets foot in trial, there is no tort-“reform.”
Jurors know– or quickly find out when they check him out on line, as some on every jury,
including yours, do regardless of admonitions from the bench – that Keenan is the guy who
protects kids. So when they see him here protecting the child in this particular case, the jurors
know he’s doing what he always does: protecting kids who really need protecting.
Not every trial lawyer can start a public service foundation as Keenan did – though you can band
together with other lawyers and do it easily. Not everyone can write child safety books that
Oprah orders her audience to read, though you can fill your web site with useful safety tips.
But every trial attorney can find good and selfless works to do. And even without Oprah’s help,
trial lawyers can easily – and inexpensively – let their communities know about their good
works. In fact, letting the community know means that others in the community will likely to
step forward to help.

THE SPECIFICS
Last year I was explaining the “good works” principle a Los Angeles CLE seminar. “Go do
good works!” I pleaded, as I am pleading now. A lawyer raised his hand and asked, “What

good is there we can do?” He was not kidding. The guy lives in the middle of L.A. and could
not think of any good that needed doing. The poor guy. Well, in case he’s reading this:
To paraphrase the great 17th-century English poet John Dryden, “Simply go do the good thing
nearest you!”3 Keenan was doing playground cases. He does kid’s cases. So he did the nearest
thing by helping protect playground kids before they got hurt. And now he protects all kinds of
kids from all kinds of danger – before they get hurt.
It’s an easy club to join: Do what’s nearest you:. What’s in your world that you can help make
safer, or better, or easier for other people – and that does not simultaneously profit you?
Here’s a sampling of what trial lawyers have already done, and what their organizations have
done:
2006. Oklahoma. Dangerous heat wave. A trial lawyer is out buying a window air conditioner.
Decides to buy two. Goes home, calls a social agency to get the name of someone in danger of
dying from the heat. That evening the news on TV features the lawyer installing the air
conditioner. Cut to an elderly man inside saying, “I have heard of this kind of thing happening
to other people. I never thought it would happen to me.” He goes on to explain how the heat
nearly killed him the night before, but that now ... and he begins to cry. One of the more
powerful TV moments anyone has ever seen.
That was Saturday.
Monday: Members of the trial lawyers academy in Oklahoma chip in enough to buy dozens of
air conditioners. They install them where needed all over the state. Result: lives saved. And
great news headlines extolling trial lawyers. Now in Oklahoma, the term “Trial Lawyer” has
some new respect – because they called the air-conditioner program “Trial Lawyers Are Cool.”
2006: A Connecticut Trial Lawyers Association press release announces that a dozen trial
lawyers standing by to provide free legal assistance to veterans having difficulty with
government agencies. This becomes a leading news story in New York and throughout New
England for days. And lots of veterans are being helped.
Years ago: A Midwestern town runs out of money for Fourth of July fireworks. A trial lawyer
steps in. To this day he pays the few thousand a year for the fireworks. He dresses up as Uncle
Sam and gives the Fourth of July speech. Everyone loves it. He’s become a town hero and
institution. Do you think tort-“reform” hurts him when he goes to trial? Nope.
WEB SITES. Smart trial lawyers turn their web sites to good-works use. Rather than the usual
transparent-greed sites such as the “We-are-such-good-lawyers-and-we-will-win-your-case”
site, or the “Look-at-my- picture-don’t-I-look-professional!” site, or the “Here’s me in my
library of books I haven’t opened in a decade” site, or the “Here’s my great victories where I got
3

“Do the duty which lieth nearest to thee! Thy second duty will already have
become clearer.”

juries to give wads of money that other lawyers wouldn’t have gotten,” site, lawyers are now
transforming their web sites into help centers.
If you do the same, then when jurors look you up – as they will – they’ll see you are about
caring and good works, not about marketing and greed. So fill your web site with lists of on-line
and local injury support groups, books to help victims cope4, and other help resources. Facts
they need to know about. Your legal wares should be a page they reach by a secondary link.
Don’t worry; if they need you’ll they’ll find it. And jurors looking you up will see your attention
to good works.
A caring trial lawyer in Wisconsin – Gordon S. Johnson, Jr. – has a good-works web site called
waiting.com. It is for people who have loved ones in comas. The site comes up on the first or
second page of a Google search. It is not the usual greedy, pathetic, and harmful attempt to cram
legal services down some poor family’s throat. Instead, it is an attempt to ease them, inform
them, comfort them, and introduce them to a community of others in their same situation and to
experts about comas. It includes Johnson’s legal services, but almost as an afterthought.
And yes, he does get cases from it. But he serves the greater good by actually helping people,
most of whom are obviously not potential clients.
Another good-works web site: icanmakeadifference.com. It’s run by the Gary Martin Hayes
law firm in Atlanta. And in association with Mothers Against Drunk Driving, Gary Martin
Hayes runs public service ads against drunk driving. Hayes is even on the board of MADD.
This shows (not tells) that he’s about safety, not greed. That pays off in every trial. And it helps
innumerable people.
A POTPOURRI OF GOOD WORKS
Now, you don’t need the list that follows. On your own, you can figure out plenty of good
works you can do. But to get your thinking juices flowing:
A number of firms give out bicycle safety helmets.
A rural western firm supplies a staff person every afternoon to serve as school crossing guide.
Your firm can provide free legal services for local social-help agencies or start-up schools. Or
serve on the school’s or agency’s board and publicly seek support for it.
Run an “emergency assistance” hotline on your web site – where people in need can post their
needs and people interested in helping can review the site often to see how they can help.
Look into what you can do in your community to help senior citizens, or the homeless, or areas
that need neighborhood security programs, or food banks, or ... ad infinitum.
4

Such as Fighting Back, the Rocky Bleier Story – which has helped countless badly
injured folks deal with their agony.

Run a December holidays booth or table at a local mall to collect presents or cash for local
underprivileged kids.
Protect the public by providing taxi tokens to intoxicated patrons for a free cab home.
Team with other lawyers to do safety checks of public and business facilities. Report the results
on your web site or in a newspaper column.
Become an actively involved supporter and fund-raiser for a worthwhile local charity. (Avoid
anything controversial.)
Teach English to immigrants – free. Advertise to attract attendees. (Learn how to teach by
Googling TEFL (“Teaching English as a Foreign Language”). You can become an expert in just
a few hours.
Teach adult literacy classes.
Tutor kids or any other group that needs tutoring.
Provide continuing help to kids with illnesses, disabilities, or permanent injuries. (For an
inspiring example, see the Epilogue to this article.) Team up with a local hospital. Provide
help for social workers who deal with these problems. Underwrite in-hospital entertainment for
the kids (or do it yourself, if you are entertaining enough to entertain kids). Sponsor in-hospital
pet-visitation programs or rehab horse programs (for people, not horses). Help raise money for
Sponsor or coach a local Special Olympics team. Provide free tickets to local cultural and sports
activities for familes that can’t afford them. Become a visible advocate for social agencies –
MDDD, YM/WCA, shelters, etc.
Post on your web site the fact that hundreds of people needlessly die every day in American
hospitals due to safety rule violations. Provide a list of ways people can protect themselves and
their loved ones while in the hospital. Or choose any area of public danger. Explain the danger,
and give advice in staying safe. For example, you can post safety tips on cars – new and used –
for such things as child safety in the back seat. (Some cars are more dangerous than others for
kids.)
Post a list of the dangerous streets in your community for bicycles.
Be openly available for free legal help when disaster -- flood, hurricane, etc. – strikes. Organize
25 lawyers across the state who will show up as first responders at the disaster site with the Red
Cross or other state disaster relief officials. One state’s trial lawyer’s academy has already
launched this program. The purpose is to help folks with their insurance companies and other
legal matters that emerge from the disaster. Free, of course. Just showing people you are there to
help soothes one of their greatest worries in such situations.
Get involved with the Bob Woodruff Family Foundation to provide needed support to the
overwhelming number of returning brain-injured veterans.

Team up with two or three other trial attorneys to write a regular legal-advice column in a local
minority-reader newspaper. (Great for marketing, and you’ll provide an essential service.)
Team up with two or three other attorneys to do a weekly drive-time radio show for a local
station. Cover topics such as interesting local trials and verdicts, guidance on how to stay safe in
various situations (e.g. in hospital), legislative matters that can affect individuals, legal advice
people need to know, etc.
Adopt a highway. Keep it spotless.
Help your local children’s Guardian ad Litem program, or Friends of the G.A.L. They need and
deserve help, your help will change young lives, and you will go to heaven.
If you advertise, 25% of your ads should be helpful, not just marketing pleas. For example, “We
do not want to see you as a defendant in court, so please: Don’t text message while driving.” Or,
“If you speed in a school zone we will come get you in trial. So slow down.”
If you buy the back page of the phone book, a third of your ad should be a list of emergency
numbers or some other useful service..
For a small ad inside the phone book, include a line or two that supports a local cause or delivers
a selfless message: “Support Mothers Against Drunk Driving.” Or, “Make trial lawyers
obsolete: Do everything safely.” Or, “Safety First. We already have enough business.”
REJECTING CASES: There’s a right way and a wrong way to reject cases. The wrong way is
how it’s almost always done. Debra Miller, one of my partners at Miller Malekpour & Ball, has
a better way. It requires more than just saying “no.” It requires sending folks away with hope
and some real help.
For example, when rejecting someone, provide contact information and descriptive information
about no-cost and low-cost support and assistance groups for folks with his or her kinds of
injuries. Include area and on-line social and community services, and national resources (e.g.,
the Anxiety Disorder Association of America or the American Geriatrics Society Foundation for
Health in Aging, etc.).
Ask your clients and past clients for other ideas: What has helped them? Relay those ideas to
folks you cannot take as clients.
Ask your experts – doctors, psychologists and grief counselors – for ideas. Collect pamphlets,
reading recommendations, and other resources. Describe available videos at the local library.
Have your staff person compile all this. Have your most empathetic person unhurriedly review
it all with the person you have to reject as a client.

Every would-be client comes to you for help. So even when you can’t take the case, you still
need to help. You have no moral right to waste their time and give nothing in return. You need
to stop making people who are in fear and pain audition for you – unless you are prepared to
give them something in return more than a chance you’ll accept them. Stop the ghastly practice
of turning people out without helping them – as if their fear, pain, anger, and loss are beneath
your notice except when they can profit you. When you turn away suppolicants without
helping in some way, you have made them fruitlessly grovel. Not a religion in the world
allows this.
And obviously, it is not what you intend. But that is exactly how the rejected person and
everyone they know perceive it. Result? For each rejectee, you create a small and vocal cadre in
your own community who now “know” you are made of nothing but greed.
Think about how many such cadres have you created so far.
This means that most trial attorneys –– each one on his or her own – have turned hundreds and
even thousands of folks who were not initially tort-“reformed” into some of the most virulent
tort-“reform” jurors. Maybe even on your jury. By the time they get there, you’ll have forgotten
them. They will never forget you.
So when you reject in the wrong way, you help the insurance companies, the chambers of
commerce, and the corporations in the most effective possible way. Because as powerful as your
good works can be, bad works are even more powerful.
And turning folks away in the wrong way is a profound, inexcusable, and public bad work. Very
bad. So please, reject in the right way. Once most firms do that, we’ll grow an army of grateful
(and surprised) folks in every community – folks who, in return, will help our cause.
More importantly, you’ll have done the right thing in the right away.

ORGANIZATIONS
Urge and help your state trial lawyers organizations and AAJ to do good works. . Not as minor
activities, but as one of their major activities. The organizations will be likely to do so – if you
will help. For one of many possibilities:
Debra Miller has created an ambitious but practical plan to help medical malpractice victims.
NCATL or some ad-hoc group of individual med mal attorneys would start the North Carolina
Patient Safety Fund. It would establish a trust to support meritorious med mal cases that are
financially difficult or impossible to pursue without assistance .

The Fund would also generate public awareness of and support for real legal and medical reform,
and provide strategic advice on cases from volunteer lawyers and trial consultants. (Our hands
are raised.)
NCPSF would help enforce medical safety rules in cases that might not otherwise be affordably
prosecutable. Currently there is no such mechanism. So most med mal victims have no
recourse, and as a result every future patient is needlessly endangered.
600 people a day die of medical negligence in American hospitals. Countless more are hurt
catastrophically in and out of hospitals. Jurors don’t know this. Nor do they know the resulting
public disability and care costs, lost income, or lost household production values. That is
estimated as high as $29 billion annually. Yet few cases get an attorney because of the expenses
of med mal litigation. NCPSF will help offset this, and make it public knowledge.
As an advance source of funds as well as a back-up in case of loss, NCPSF will make it more
practical to take these cases. Attorneys will submit cases for the Fund’s confidential review
board to determine whether the Fund can/should assist. With an attorney’s investment of only a
single expert evaluation, the review board can see whether the case is supportable and capable of
persuading a jury.
This Patient Safety Fund can be funded in several ways. First, by NC lawyers contributing a
small percentage of their major wins.
Second, by seeking contributions from clients whose medical cases have resulted in fair verdicts.
Often, a client’s motive for bringing such a case is to help make sure that what happened to them
doesn’t happen to anyone else. Ask Wade Byrd (Fayetteville) how this worked with one of his
clients. You might be surprised by how willing such folks are to help others get the same level
of justice.
Third, by contributions from attorneys whose cases the Fund makes possible.
Fourth, by application to the many philanthropic foundations in NC and around the country that
have specific interest in developing this kind of project.
Fifth, by med mal experts who work for plaintiffs. The Fund would be in their interest, because
it would result in more assignments for them.
With each successful settlement or verdict, the Fund would publicize the results within the
framework of a patient safety campaign.
Ambitious project? Sure. Expensive? Yes – but easy enough to fund. Obviously you can’t do
it on your own. But there is strength in numbers. If you are interested in seeing such a project,
find others who are (Miller Malekpour and Ball, our consulting firm, for example, is readily

available to help develop the project. We even have someone ready to research and write the
foundation grant proposals. But you have to join us on the bandwagon.).
It will be a very visible example of how the work of attorneys actually helps.
SHOW THE WORLD. An outstanding attorney in one of America’s great law firms heard me
teach all of the above. “No!” she said. “My firm has done good works for years – and we still
can’t win a case!” She gave me an annual report of all their good works. Problem was, the
public knew nothing about them. Among Jesus’s first recorded words are these: “Neither do
men light a candle and put it under a bushel, but on a candlestick; and it giveth light unto all that
are in the house.” Your good works are your candle, and we have a huge house to light.
Today, that firm lists its good works on its web site. It should be the site’s main page, with
everything else on sub-pages. But it’s a start.
ON LINE: Speaking of web sites: Every political donation you make is easily found on line.
Jurors often research this kind of information. No matter what candidate you donate to, it will
offend some jurors, leaving them less willing to trust you or want to help you. So make your
political donations in your kid’s name, or some other name. Your political views are none of a
juror’s business.
Here’s what is their business: Your visible, selfless, good works. They are the only tool that
can regain the lost ground of almost 40 years of effective, powerful, well-financed, unanswered
tort-“reform” attacks.
We can regain the field, but we’ll have to deserve it. So as Nike says, Just do it.

EPILOGUE
Last year a lawyer5 cornered me at a conference. “Ball!” He yelled. “You ruined my life!” I
felt I needed no more of this conversation and started away. But he grabbed me and continued.
He said, “Dammit, Ball, you told us to do good works. Near-at-hand works.”
I looked around for accessible escape routes.
He continued: “I do cases for kids who are serious burn victims. I know that the hardest thing –
beyond even the pain – is the disfigurement. It’s awful for a kid to grow up with. So I started a
summer camp for these kids. They get to spend close time with others in the same boat. They
gain confidence. They learn how others handle it. The damn idea grew like kudzu. Now I got
five burn camps. Takes half my time! I don’t earn a cent from it! What the hell?!?”
5

See http://burnadvocatesnetwork.org/. New Jersey’s Sam Davis is the attorney. Send
him money to help support the burn camps.

Was he gonna punch me out?
Then he – New Jersey attorney Sam Davis – says, “And I have never been happier in my life.”
That gives us the gold standard. If enough trial lawyers get to that level, tort-“reform” in juries
and in the legislature will devolve to a barely believable historical oddity. Result: fair
settlements. Fair verdicts.
The alternative: If we rely on just the blather of words to try to persuade, in the near future there
won’t be trial lawyers. Because once the poisoned third grows to half (eight or nine years away
at the current rate) your work will be outlawed.
So get busy. Either that or get a book on how to do some other field of law. I assure you, I will
not have written it.

Motivating Jurors
Trial Magazine
March 2008 | Volume 44, Issue 3

Making preponderance work
David Ball, Ph.D.
Almost all jurors expect you to prove your case beyond a reasonable doubt, and
you won’t change their minds by explaining preponderance. But if you make
preponderance a working theme throughout trial, jurors will make
preponderance-based decisions about liability and damages.

In most civil trials, one of your most important tasks is to get jurors to make decisions
based on a preponderance of the evidence. Throughout your career, you’d probably
have won most of the cases you lost if the jurors had decided based on preponderance.
But they didn’t.
There is a simple and highly effective template you can follow to ensure that jurors will
make preponderance-based decisions. Follow the template meticulously. Omit nothing,
change nothing, unless forced to. (Because this template works so well, don’t use it
when a lowered burden will hurt you—such as with a dangerous affirmative defense.
Don’t do the defense any favors.)
The goal is this: In deliberations, when a defense-oriented juror says, “I’m just not sure,”
you want the other jurors to say, “We’re not here to be sure. We’re just here to say
whether the plaintiff is more likely right than wrong.” Yet pattern instructions and
attorney explanations almost never get jurors to say that.
Certainty, not preponderance, is every juror’s default standard. But the template will
make jurors enforce preponderance in their deliberations.
The template’s overriding requirement: All through trial, not just in voir dire and closing,
keep the concept of “more likely right than wrong” in front of the jurors. Failure to do this
is the most common reason plaintiffs lose and a major reason so many cases do not
result in fair compensation. The only remedy is to use the template to make
preponderance the lens through which jurors will see and gauge the evidence not in
retrospect, but as it comes in.
For two reasons, this is essential. First, when you explain preponderance in voir dire
and then drop the subject until closing, jurors don’t remember it. Second, when you
remind jurors in closing, it does no good—because no one can think backwards. You
can’t even say your own Social Security number backwards. So when you remind jurors

about preponderance in closing, how can you expect them to go backwards and
reweigh the evidence? Can’t be done.
You must ensure that they keep preponderance in mind throughout trial. Otherwise you
cannot topple the juror default standard of certainty.
Following the template is easy. It works—if you do every step, starting with jury
selection. Even if you don’t get to conduct your own jury selection in your jurisdiction,
study the next section to understand the principles you will use in opening.

Jury selection
In voir dire, say this:
In trials like this, jurors make their decisions on the basis of whether my
side is more likely right than wrong.
Use those exact words. Don’t mess around with them.
HANDS. As you say “more likely right than wrong,” position your hands side by side
and close together, palms up, at waist level. Position your right hand a half inch higher
than your left.
Do this every time you say “more likely right than wrong” for the rest of trial. This will be
over and over and over. The result: Jurors will use that exact hand language on your
behalf in deliberations. The judge will probably do it when reading the jury instructions.
Sometimes even defense counsel does it in closing.
Don’t use the words “preponderance” or “burden” or phrases like “greater weight of the
evidence.” Wait until closing to connect these concepts to the language of the law.
Jurors neither like nor understand legalese. Many are suspicious of plaintiff attorneys
who use it; if you do, they are likely to regard you as arrogant or even comical. Plain
English is a great invention, so simply say, “more likely right than wrong.” It’s clear, and
clarity is your best friend.
Then say:
Some folks think “more likely right than wrong” [use hands] is not quite
fair—because it makes things a little too easy on my side and a little too
hard on the defense, because my side doesn’t really have to prove
anything. 1 Other folks feel that our having to be only more likely right than
wrong [hands] is OK.
So, Mr. Juror, are you a little closer to the people who think it’s a little
unfair, too easy for my side? Or are you a little closer to the people who

1

This is one of only two times you will use the word “prove” or “proof.” At other times, use the
word “show.” When you say “proof” at any other time, jurors think you mean absolute proof. That leads
them to decide on the basis of absolute or nearly absolute proof, no matter what you say about
preponderance.

think it’s OK? 2
Don’t ask, “Which side do you agree with?” Jurors will more likely respond comfortably
to “Which are you a little closer to?” And when Mr. Juror responds, ask him the allpurpose follow-up question: “Please tell me about that.”
Don’t lead. The only follow-up question to ask is the wide-open “Please tell me about
that.” And after the juror tells you about that, say, “Please tell me more about that.” If
you have time, ask Mr. Juror that same question until he has no more to say.
This starts a powerful process that accomplishes the three critical things you need to
achieve in voir dire:
It gets you many cause dismissals. Many jurors will not agree to decide on the basis
of 80 percent or 70 percent or 60 percent certainty, so they are easy to remove
for cause.
It exposes tort “reform” jurors. Jurors who are uncomfortable with preponderance
strongly tend to be tort “reform” jurors.
It initiates the theme of “more likely right than wrong” as the lens through which
jurors will view each new piece of evidence as it comes in.
After the jurors have their say, tell them:
I had to ask about this because in this case, you will be required to make
all your decisions on the basis of whether we’re more likely right or wrong
[hands].
We expect to show you far more than that. But by the end of the trial, even
if someone has doubts, and even if someone thinks we’re only more likely
right than wrong [hands] on a question, you will be required to decide that
question in our favor.
Mr. Defense Attorney agrees that you have to base all your decisions on
whether our side is more likely right than wrong [hands]. And Her Honor
will tell you that “more likely right than wrong” [hands] is the law.
Do not omit “Mr. Defense Attorney agrees. . . .” Preponderance becomes the operative
rule only when jurors hear that your opposition—not merely the judge—agrees with it.
Then say:

2

When you must question the group before asking individual follow-up questions, ask, “How
many of you are a little closer to the folks who feel that ‘more likely right than wrong’ [hands] might be a
little unfair, a little too easy on my side?” Then, “And how many of you might be a little closer to the folks
who think it’s OK?” Then, “And how many of you think you might be somewhere in the middle?” Follow up
individually.

So, Mr. X [choose a juror who had trouble with this], what trouble would
you have, even a little, making your decisions on the basis of just whether
we’re more likely right than wrong [hands], not whether we give you total
proof?” 3
This will probably lead to more cause dismissals than you’ve ever had. 4 Any juror who
says he or she would not be able to—or would find it hard to—decide on the basis of
“more likely right than wrong” is not competent to serve. 5
Your final two voir dire questions—about jurors’ rights—will bolster your preponderance
theme: 6
Folks, jurors have certain rights. It’s important for you to exercise these
rights when necessary. So I need to ask you about them.
First, you have the right to hear all the testimony. Every word. So if you
don’t hear something a witness says, will you all be comfortable raising
your hand and telling the judge, “Your Honor, I did not hear what the
witness said. Could you ask her to repeat it?”
Then:
Second, and even more important: You have the right to clearly
understand the law. You have the right to know that every other juror
clearly and correctly understands the law. You have the right to know that
you are on a jury in which every juror is following the law. So during
deliberations, if there’s anything about the law you don’t understand, or if
there’s any disagreement among you about the law, or if anyone is
refusing to follow the law the judge gives you, will you be comfortable
asking your foreperson to knock on the door and tell the bailiff you need
the judge to come explain that part of the law again?
Never omit these questions. They become important when you get to closing.
If this kind of questioning is new for you, run a practice session with half a dozen
3

This is the second and last time in trial to use the word “proof.”

1.
4

For a good method for pursuing cause challenges, see David Ball, David Ball on Damages: The
Essential Update, app. A 314-17 (2d ed., Natl. Inst. Tr. Advoc. 2005).
5

Show the judge Wainwright v. Witt, 469 U.S. 412 (1985). Its first holding is that prospective
jurors must be excused if their views could substantially impair their ability to perform their function as
jurors and that the impairment need not be shown with unmistakable clarity. Tell the judge you simply
want jurors who will follow his or her instructions, which research has shown many jurors will not do.
6
These questions are adapted from those first developed for plaintiffs by the brilliant California
attorney and trial consultant, Dr. Sunwolf.
2.

strangers in your office the evening before trial. You want to be comfortable, not
tentative, asking these questions of real jurors.

Opening statement
In opening statement, you will continue to reinforce the “more likely right than wrong”
theme. Every time you refer to what a witness is going to say, include this theme. For
example: “Heather Witness will tell you the light was green. She’ll also tell you she is
more likely right than wrong [hands] when she says the light was green—and that
beyond that, she is sure.”
When referring to an expert witness, tell the jurors:
Dr. Expert will tell you that her conclusion is more likely right than wrong [hands]. She’ll
also explain that beyond that, her conclusion lies within a reasonable degree of medical
[or engineering or whatever her field is] certainty. And she will explain that when she
says “reasonable degree of medical certainty,” she means “that degree of medical
certainty that is based on reason.”

Case-in-chief and rebuttal
Remember: A theme is a theme only if it is continuously maintained. So during
testimony, continuously do what you promised in opening:
Q: Ms. Witness, when you say the light was green, are you more likely
right than wrong [hands] about that?
A: Yes.
Q: And beyond that, are you certain?
A: Of course.
And:
Q: Mr. Engineer, when you say that the van was going 34 miles an hour,
are you more likely right than wrong [hands] about that?
A: Yes.
Q: And beyond that, does your conclusion lie within a reasonable degree
of engineering certainty?
A: Yes.
Q: And what do you mean by engineering certainty?
A: I mean that degree of engineering certainty that is based on reason.
If you can’t rely on your expert to answer that question properly, you may need to lead.

So ask, “When you say that your conclusion lies within a reasonable degree of
engineering certainty, do you mean that degree of certainty that is based on reason?”
Your frequent repetition of “more likely right than wrong”—like a memory sticker on
every piece of evidence—will continually remind the jurors that preponderance is the
requirement.
Every so often, precede a question by referring to the jury’s task: “Mr. Beckett, these
folks [the jury] have to decide whether we are more likely right than wrong [hands]. So
when you say you waited by the side of the road for more than six hours, are you more
likely right than wrong [hands] about that?” 7
In these simple ways, you keep the jurors’ judgments focused on preponderance
throughout your case-in-chief. But because the defense lawyer is not likely to mention
“more likely right than wrong” during the defense case, the jury will probably default to
its “certainty” standard. So during your closing, you must recall the jurors to their
preponderance senses.

Closing argument
Via slide, board, or paper, show and tell the essential fragment of the jury instruction on
preponderance. Face the jury with the instruction behind you, and recite the fragment
verbatim from memory. Don’t turn around and read it. You want the jurors to see that
you know the law without having to look at it. Then say:
This just means what we have been saying throughout trial: Are we more
likely right than wrong? [hands]
We have shown we are far more than just more likely right. [Raise one
hand as high as you can.] But the law says that even if someone thinks
we’re only more likely right than wrong [hands]—even by the smallest
amount—then you have to answer that question our way. You can have all
the doubts you want on both sides, as long as when you come down to it,
you think we are more likely right [hands].
Mr. Defense Attorney agrees that “more likely right than wrong” is the way
you must decide. And after I sit down, the judge will officially instruct you
that “more likely right than wrong” is the law you must follow.
Next, you’ll do the most important thing you can do in closing: You will arm your
favorable jurors to go into deliberations and speak on your behalf. Just as you are your
client’s advocate, you must make your favorable jurors into your advocates.
To do this, give your favorable jurors the exact words and phrases they will need in
deliberations to advocate for you. Use simple, 5- to 10-word “boil-downs”—shorthand
7

second.

Some judges may not let you use the first sentence of this question; in that case, use only the

versions of each crucial point in the case. 8 Make sure your favorable jurors can
comfortably use these words, phrases, and boil-downs. Use no legalese, no complex
sentences or ideas, no big words, no technical language. Use simple phrases and short
sentences. You’ll say,
Folks, during deliberations, if anyone says ABC, remind them that XYZ.
These may be the most important words you ever say. You must arm jurors in this way
for every important matter in the case. And one of the most important matters is
preponderance. Do it this way:
Over the course of deliberations, if anyone says they’re just not sure
[that’s the ABC], remind them that you don’t have to be here for weeks
trying to be sure. All you have to do is follow the law: Are we more likely
right than wrong? [That’s the XYZ.] Even just a little more right than
wrong.
Then explain what the jurors should do if one of them won’t go along with the law:
After you explain it, if a juror is still not willing to go along with ‘more likely
right than wrong’ [hands], tell your foreperson to reread instruction number
five out loud again.
And here’s the enforcer:
If that juror is still not comfortable with ‘more likely right than wrong’
[hands], ask your foreperson to knock on the door and
tell the bailiff that you need the judge to come talk to a
juror who is refusing to obey her instructions. 9
If you meticulously follow this model from jury selection through closing, your jurors will
decide not on the basis of certainty but on the basis of preponderance. Even tort
“reform” jurors will go along with preponderance. They, even more than other jurors,
respect rules—and preponderance is a major rule. So if you practice this technique
before trial and leave nothing out, you will win the cases you ought to win—even in the
8

The National Jury Project’s Susan Macpherson teaches attorneys to employ these “boil-downs.”
If asked, many judges will add the following jury instruction: “Over the course of deliberations, if
any juror is disregarding my instructions, your foreperson has the duty to tell me. If the foreperson does
not do that, it is the duty of every other juror to do so.” Ask the judge to give this as the last instruction. If
the judge is reluctant, point out that nothing is more important than that jurors understand and follow the
judge’s instructions, and that we are in an era when jurors routinely ignore them. Point out that any
defense argument not to add this instruction has to be based only on their desire for jurors not to follow
the law, which makes this instruction all the more important.
9

current tort “reform” climate.
Do not underestimate this technique. As simple as it is, it will empower you to help your
clients as they need and deserve to be helped.
__________________________
David Ball is a partner in the Durham, North Carolina, trial consulting firm of Miller Malekpour &
Ball. He is the author of David Ball on Damages: The Essential Update (2d ed., Natl. Inst. Tr.
Advoc. 2005), Theater Tips and Strategies for Jury Trials (3d ed., Natl. Inst. Tr. Advoc. 2003), and
How to Do Your Own Focus Groups (Natl. Inst. Tr. Advoc. 2000). Dr. Ball and his partners Debra
Miller and Artemis Malekpour consult on cases across the country.
Contact: jurywatch@mindspring.com.

7

|

DAMAGES

Damages and
the reptilian brain
D AV I D B A L L

The ‘reptilian
brain’ governs our
survival responses.
Tort ‘reformers’
have long used
these responses
dishonestly to their
advantage. This
introduction to a
new kind of
advocacy will help
you show jurors
that the real danger
is from the
defendant’s
misconduct.

Reprinted with permission of TRIAL (September, 2009)
Copyright American Association for Justice,
formerly Association of Trial Lawyers of America (ATLA®)
24

| trial

September 2009

F

or nearly four years, three attorneys—Don Keenan of Atlanta; James Fitzgerald of Cheyenne, Wyoming; and Gary Johnson of
Pikeville, Kentucky—and I have been
investigating a part of the brain neuroscientists call the R-complex, or “reptilian,” brain and how it affects the kinds
of decisions jurors are called on to
make.
Our impetus came from a beach
where Don Keenan has a home. Soon after moving in, Don discovered that his
next-door neighbor is Karl Rove, one of
the plaintiff bar’s archenemies. During
what Rove probably thought was casual
conversation, Keenan got him talking
about persuasion. Rove particularly
praised the work of marketing guru
Clotaire Rapaille.1
Soon after hearing about Rapaille,
Keenan propelled us into the adventure of our lives. It took us through evolutionary science, neuroscience, and
an extensive series of participantcentered research projects across the
country.
We began, as good research demands, with deep skepticism. And we
had reason for skepticism: Although
Rapaille and other marketers had long
demonstrated that enlisting the reptilian brain is marketing’s most persuasive tool, and although Karl Rove and
company are only the latest in a line of
persuaders who have empirically
proved the principle over thousands of

years, marketers need to persuade only
a few percent of the population. And
political persuaders such as Rove need
only a bare majority.
But trial lawyers need to persuade 75
percent to 100 percent of the jurors in
a case. Could the reptilian brain get us
there? The mere possibility seemed
worth the effort of finding out.
Rapaille’s techniques provided our
starting point. They derive from the
work of National Institute of Mental
Health neuroscientist Paul MacLean,
who developed the concept of the
three-part (triune) brain in humans.
MacLean called the most primitive part
“reptilian” because it is identical to the
full brain of modern reptiles.2
The reptilian part of the brain—
which my colleagues and I simply and
affectionately call “the reptile”—runs
our autonomic life functions. She (an
arbitrarily chosen pronoun) creates,
directs, and motivates our survival
drives, such as hunger, sex, and danger

David Ball is a jury researcher and
trial consultant in the Durham, North
Carolina, trial consulting firm of Miller
Malekpour & Ball. Reptile: The 2009
Manual of the Plaintiffs’ Revolution, by Ball and Don Keenan, was released recently by Balloon Press. Ball is
also the author of David Ball on Damages: The Essential Update (2d ed.,
Natl. Inst. Tr. Advoc. 2005), which will
soon be in its third edition.

avoidance. She has no emotion,
thought, or memory but enlists those
services from other parts of the brain
to fight for your—and your genes’—
survival chances.
Whenever anything can potentially
affect those chances of survival—even
a little—this most primitive thing in
your head grabs full control of the entire brain. This includes control of
your logical, emotional, and other decision-making resources. As soon as a
survival danger

crops up,
the reptile
rearranges the
brain’s priorities, placing the
reptile’s only concern—survival—on top.
Lineages in which survival concerns took a lower priority could not
have survived the unforgiving macro
and micro forces of evolution.3 Lions’
primary survival traits are claws. Cheetahs: speed. Skunks: big stink. Humans: the ability to make decisions using complex input and abstract
analysis. This is how we survived eons
of precipitously changing environments and hungry creatures stronger
and faster than us.
The human brain can perceive,
store, gather, weigh, and analyze information. Those sophisticated IT functions enable the reptile to select the
safest available decision, which she’ll
then force us into.
We like to believe that we base our decisions on rationality and logic. Sorry.
Logic is but a fragment of our brains’
functioning. It controls little.
When it comes to survival, logic is
subservient to the reptile. When the
two conflict, logic either adapts to the
reptile’s needs or is ignored. When people make survival-related decisions,
they obey the reptile—not logic, emotion, intuition, or abstract notions such
as justice.
ISTO CKPH OTO

And the reptile’s imperative is that
safer—even just a little safer—is the only
acceptable choice.

Not only rock-solid logic but also
facts, stories, bias-battling, pleas for
justice, emotion, and speaking eloquence all are easily defeated unless
you get the reptile on your side. To do
that, you need to show the reptile two
things.
First, you need to show that the reptile is in danger. When she detects a
survival danger, the reptile protects
her genes by impelling the
juror to protect himself
or herself
and

an element of damages is nowhere
near as effective as showing how the injury has interfered with mobility and resulted in loneliness and isolation. This
is because over the course of evolution,
pain actually helps us survive, while lack
of mobility and being alone are among
the leading causes of death.
We usually feel sorry for other people’s physical pain, but we never actually feel their pain. In contrast, we often
share the specific feeling of someone’s
impaired mobility (can’t get home or
can’t escape danger, for example) or
loneliness (a lover leaves or dies, the
good guy becomes a social outcast, or
someone faces the rest of his or her life
alone). Shared feeling is immeasurably
stronger than feeling sorry, and the two
derive from very different parts of the
brain.

the community.
In your case, the defendant’s misconduct represents a danger that connects to the juror and his
or her family.
The second thing you need to show
the reptile is that a full and fair damages
verdict will diminish the danger for the
juror and his or her family—that the
proper verdict will enhance community safety by discouraging that kind of
dangerous behavior and, conversely,
that an improper verdict will not only
allow but also encourage it.
The result: The reptile sees a proper
damages verdict as her best available
choice for survival, even if it affects her
survival by only a very small amount. So
the reptile helps us in “small” cases as
much as she does in “large” ones.
Our research has shown
■ the source of antiplaintiff attitudes and biases and how to remove
them from the decision-making process
■ how to develop new and effective
litigation and advocacy techniques the
defense cannot fight
■ why reptilian trial advocacy throws
out little of what you already do. Instead, it focuses and redirects you, like
adding a telescopic laser-sight to a rifle.
For just one example, our research
revealed that showing physical pain as

Remember this when
you’re researching and framing your
next case. This principle is basic to plays
and movies (few center on physical
pain) and should be to trials as well.
Reptilian techniques—dishonestly
and cynically deployed—are almost
alone responsible for the sickening
success of tort “reform” in courtooms
and legislatures. The tort “reform”
campaign has persuaded a third of the
public—and that proportion is growing—that lawsuits and trial lawyers endanger every family’s medical care,
jobs, and safety. These are survival dangers. So until you get the reptile on
your side, she will implacably drive the
juror to fight you.
Years ago, the work of David Wenner
and Gregory Cusimano confirmed that
a number of common biases hurt our
cases.4 For example, many jurors blame
our clients for failing in their personal
responsibility, as in, “She should have
gotten a second opinion.” We have
found ways to partly offset this bias,
such as by talking about corporate accountability instead.
But even when this works, the tort“reformed” reptile simply substitutes a
different bias or some other equally effective motivating force to control the

Enlisting the reptile

trial September 2009

| 25

|

DAMAGES

juror’s decision. As Rapaille says, the
reptile never loses. She will instantly deploy five other biases, attitudes, misperceptions, and fears for each one you
counter.
Fortunately, the reptile deploys those
weapons against you only when she considers a verdict for your side to be a
threat to her. As soon as she perceives
that a defense verdict would cause a
greater or more immediate threat, she
deactivates those weapons.
This is true even about
experience-based and situation-based attitudes, the
deepest of feelings, and core
values. The reptile deploys such
things only when they help her. She
abandons them when they don’t. They
are not continual conditions like
hunger.
After all, the reptile did not survive
evolution by allowing attitudes, biases,
and core values to interfere with her
survival. To the reptile, the only core
value is survival, and it trumps everything else.
This is why tort-“reformed” jurors
can love Erin Brockovich. It’s why a white
supremacist forgets his racism when he
and a black man need each other to get
themselves out of danger (as dramatized in The Defiant Ones). The racism
is not cured; it is merely suspended
when it interferes with survival.
Understand this clearly: An attitude,
bias, or core value (even the drive for
justice) exists solely as a defense mechanism. When it can interfere with survival, the reptile drops it like a hot pota-

to. We saw
this surprising phenomenon in session after session of our
research, and now we have
been seeing it in trial after trial.

Revealing
danger
At the heart of all this lies
fear. Without tort “reform” having profoundly scared a third of the jury pool
about their own survival issues,
the second-rate defense “experts” and
defense lawyers with bogus cases
would not so easily outdo excellent plaintiff lawyers

with good
cases and highly respected experts. Verdicts would be full and fair, not tokens.
But unlike the purveyors of tort “reform,” we have truth on our side. For
example, here’s one of an endless number of truths we can make effective reptilian use of: The national death rate
from medical error is 15 times higher
than the national murder rate, vastly
outweighing the supposed survival dangers the tort “reform” movement has
fabricated.5 Obviously, knowledge of
this fact would influence what the reptile would do in a med-mal case.
Without violating the “golden rule”
stricture, reptilian advocacy shows that
the kind of misconduct that hurt your
client is an immediate and ongoing

How to learn more
The substantial repertoire of reptilian
methods is expanding almost daily
from our continuing research and new
ideas being shared with us by trial
lawyers. Here’s how you can learn
more and be part of the development
of new reptilian strategies.
■ Read the book I wrote with Don
Keenan, Reptile: The 2009 Manual of the
Plaintiffs’ Revolution (Balloon Press
2009).
■ Logontowww.ResearchExchange
26

| trial

September 2009

Partners.com. Rick Friedman, Don
Keenan, and I—along with Gary Johnson, Jim Fitzgerald, Debra Miller, and
Artemis Malekpour—will bring you
into the process and keep you up to
date on new developments, strategies,
and trial experiences.
Many of AAJ’s finest trial lawyers are
already involved. We want you to participate, too, so that we can all share in
this new advocacy’s development.
—David Ball

danger to the juror—a danger that can
be diminished by a full and fair verdict.
The plaintiff’s use of the reptile in this
way is exclusive, because the defense
has no way to offer refuge from immediate or ongoing danger. In
every case, we—and only we—
can. And to the reptile, immediate dangers
always trump
midterm and longterm dangers, including those
fabricated by tort “reformers.”
Once you have enlisted the
reptile to your side, the defense
has only one practical tactic: attempting to make the judge prevent you from using reptilian methods. For example, some venues in
Florida bar community-safety arguments. In such circumstances, you can
simply refrain from being explicit, or
you can shift to other, equally effective reptilian techniques.
One focus of our ongoing research is to expand the arsenal of
admissible reptilian techniques.
So, for example, our adaptations of
Rick Friedman’s and Pat Malone’s
landmark Rules of the Road 6 provide
the basis of one approach (even in stipulated negligence cases) to use the reptile without transgressing local limitations. Properly used, the rules will
implicitly and easily elevate defendant
error or mistake to a rule violation that
endangers the community.
We call one primary technique
“spreading the tentacles of danger.”
This technique closely connects the defendant’s dangerous conduct to each
juror. It keeps jurors from seeing the
danger as relevant only to other people.
Your client’s injuries become the concrete manifestation of the community
danger represented by the defendant’s
violation. The injuries show the jury
that such a danger is among us.
Here are a couple of ways to spread
the tentacles of danger:
Q: Dr. My Expert, not everyone has experience with childbirth. Could you please explain how violating the rule that the defendant violated in the delivery room is a
dangerous way to practice medicine?

A: Let me explain by using the example of
an older person reporting chest pains to the
emergency room staff. . . . [Then have the
expert provide examples of how the rule
works in additional areas of medicine. This
makes the danger a community danger,
rather than just a danger to babies and
mothers during childbirth.]7

Or:
Q: Mr. Driver’s Ed Teacher, the defense told
the jury that a low-speed crash can’t cause
serious harm. What do you teach your students about that?
A: I show them the state’s statistics of how
many people in cars are permanently injured every year in collisions at speeds under 12 mph. And I explain that the same impact could easily maim or kill pedestrians,
and it does all the time.

This helps show that low-speed collisions cause harm to people in cars and
that everyone is at lethal risk from lowspeed impact. So violat-

ing the rule requiring drivers to
see what is there to be seen is a community menace. This impels the reptile to
use fair compensation to protect herself,
even when you are not allowed to make
that explicit argument.
Examples for closing: “It’s up to you to
decide how far someone has to go in
breaking the community’s safety rules
before you—as the community’s representatives—decide he must pay full and
fair compensation for the harm he’s
done.”
Or (where allowed): “If you give this
defendant a pass for what he did, what
do you think will happen next? What
will others do in this community when
they see what this defendant got away
with?”
Raleigh attorney and Duke law professor Donald Beskind points out that
ISTO CKPH OTO

almost every venue has a case specifying that public-policy tort law expresses,
at least in part, the social need for community safety. This is precisely why the
reptile is our ally.
And here is how the reptile and the
law are in total agreement: No one exercising ordinary care needlessly endangers anyone. It is not prudent to
needlessly endanger. For the same reason, there is no such thing as a stan-

into bogus testimony from independent medical examiners, to deploy antiplaintiff attitudes, or to do anything
else that has been blocking your client’s
path to full justice. The shaky hat pegs
on which the defense hangs its theories
fail because they no longer offer the juror safety.
Instead, safety will lie solely in a full
and fair verdict.
We’ve all been through the long

Here is how the reptile and the law are in total
agreement: No one exercising ordinary care
needlessly endangers anyone. It is not prudent
to needlessly endanger.
dard of care that needlessly endangers. Jurors insist on this, and so does
the law.
Even the defense has to agree.
So to both the law and the reptile,
the only acceptable
choice for any
particular
goal is
the available
choice that carries
the least unnecessary
danger. The second-safest
choice, no matter how safe, is
negligent, because it carries
more danger than the safest.
When there’s a safer way, any
danger is needless.
That is the imperative by which
our species (and our laws) evolved
and survived. So when a defendant
claims that his or her second-safest
choice was “safe enough,” your
proper use of the law in this way
should give you a strong negligence
win, along with the impetus for a
fair verdict.
This is just one of the many reptilian
techniques that totally alter the playing
field.
Once you have mastered reptilian advocacy, every case—even the smallest—
becomes important to the reptile,
whose only priority is survival. The reptile will have no survival reason to buy

night of tort “reform” together. Now,
working together, we are speaking truth
to power in ways that power cannot survive. In a democracy, that is the very definition of justice.
■
Notes
1. See e.g. Clotaire Rapaille, The Culture Code
(Broadway Books 2007).
2. Paul D. MacLean, The Triune Brain in Evolution: Role in Paleocerebral Functions (Springer
1990).
3. See George C. Williams, Adaptation and
Natural Selection (Princeton U. Press 1967);
Richard Dawkins, The Selfish Gene (Oxford U.
Press 2006). If you prefer, instead of evolution,
you can think in terms of intelligent design, as
long as you understand my explanation of the nature of the design.
4. Wenner and Cusimano created the Jury
Bias Model. See www.jurybias.com.
5. See FBI, Uniform Crime Reports, www.fbi.
gov/ucr/ucr.htm; HealthGrades, Inc., Fourth Annual Patient Safety in American Hospitals Study
(2007), www.healthgrades.com/media/DMS/
pdf/PatientSafetyInAmericanHospitalsStudy
2007.pdf.
6. Rick Friedman & Patrick Malone, Rules of
the Road (Trial Guides 2007). This book is required reading for every plaintiff attorney—in
business, intellectual property, and every other
area. See also my and Don Keenan’s extension of
it in Reptile: The 2009 Manual of the Plaintiffs’ Revolution ch. 6 (Balloon Press 2009).
7. You need not make an overt community
safety argument for this technique to be effective.
You are simply educating jurors about how the
danger works by analogy to situations they are
more familiar with. Analogy is always an acceptable means of explaining concepts.

trial September 2009

| 27

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

FILED

Page 1 of 12

2009 Jun-15 PM 01:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
KRIS THORNTON,
Plaintiff
v.
PHILLIP KING; JACKIE RIKARD;
and RONNIE WILLIS,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. CV-07-S-0438-NW

PLAINTIFF’S REQUESTED VOIR DIRE QUESTIONS
1.

Please tell me about your job. What is your work day like? Follow-up

questions related to work.
2.

Please tell me about the work that your husband/wife does. What is a

normal workday like for him/her?
3.

If you are not married, with whom do you live? Describe the work that

they do.
4.

Please tell me about your children. How many? What ages? What

occupations?
5.

Have you or anyone close to you ever been in the military? If yes, what

branch and at what rank?
6.

Do any of you know the plaintiff, Kris Thornton, or the defendant,

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 2 of 12

Phillip King, or anyone you believe may be related by blood or marriage to either the
plaintiff or the defendant? Who? How well do you know them?
7.

Do any of you know any other member of the venire? Who? How?

How well do you know them?
8.

Do any of you know any of the following people who may be witnesses

in this case: Dr. Duff Austin, Melissa McMullin Smith, Annette McCurry, Jim
Williams, Tim Taylor, Amanda Skipworth, Chapel King, Brad Skipworth, David
Riley, Emerson Gatewood, Wanda F. Cobb, R.N., Kenneth Lemaster, and David A.
Hollis, M.D. How? How well do you know them?
9.

Have any of you heard of or do any of you know either of the defense

attorneys, Daryl Masters and Fred Clements, or any lawyers who work at their law
firm, Webb & Eley, P.C., in Montgomery? How? How well do you know them?
10.

Have any of you heard of or do any of you know the lawyer for the

plaintiff, Hank Sherrod? How?
11.

Have you, any member of your family, or anyone close to you ever

worked for the City of Florence, Lauderdale County, or the Lauderdale County
Sheriff? Who? What was the job?
12.

Do you know anyone who was or is employed at or in any way

connected with the operations at the Lauderdale County Detention Center? Who?
2

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 3 of 12

What was the job?
13.

Do any of you have a belief, whether moral, religious, or otherwise, that

would not allow you to sit in judgment of another?
14.

What are your primary sources of news information?

15.

Do any of you listen to Rush Limbaugh? How often?

16.

Do you, your spouse, or anyone else living with you have any bumper

or car window stickers? What are they?
17.

Have you, a family member, or a close friend ever participated in any

group concerned with crime prevention or victims’ rights? Who? Please describe the
nature of the participation.
18.

Have you or anyone close to you ever been a victim of crime? Please

describe the incident. What was the outcome? Were you satisfied with the result?
19.

Who feels that crime is a serious problem in your neighborhood? Please

tell me about that.
20.

Have you ever moved or considered moving because you thought crime

was a problem in your neighborhood? Please tell me about that.
21.

Who here has–or knows anyone who has–been in the Lauderdale County

Detention Center? Please tell me about that.
22.

Who here has–or knows anyone who has–been in jail or prison? Please
3

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 4 of 12

tell me about that.
23.

Have you, any member of your family, or any close friend ever held a job

with an agency or department engaged in law enforcement, including
a.

a state or local police department or agency;

b.

a sheriff’s department;

c.

a jail, prison, or youth offender center;

d.

the FBI, DEA, ATF, INS, Department of Homeland Security, or
any other federal department or agency involved in law
enforcement;

e.

any prosecutor’s office;

f.

the military police; or

g.

a parole or probation department or agency.

If so, please identify the person and describe the job.
24.

Have you or anyone close to you called on the police for help? Tell me

about that.
25.

Have you or any member of your family ever belonged to the National

Rifle Association?
26.

Are you acquainted with any judges or attorneys? Who? How well do

you know them?
4

Case 3:07-cv-00438-VEH

27.

Document 56

Filed 06/15/2009

Page 5 of 12

Have you or anyone close to you ever been employed in a security-

related job for a private business (for example, as a security guard or investigator)?
Who? How well do you know them?
28.

Have you ever worked in a job that caused you to work with any law

enforcement officer or agency? Please describe the job and the nature of your
contacts with law enforcement.
29.

Have you or anyone close to you received any training in law, law

enforcement, criminal justice, criminology, or the legal system? Please describe.
30.

Have you or anyone close to you received any medical or psychological

training? Please describe.
31.

Have you or anyone close to you worked in a job in the medical or

psychological fields? Please describe.
32.

Have you or anyone close to you ever had an informal relationship with

any law enforcement agency or department, including a ride-along program, crime
watch program, or any similar program or activity? Please describe the relationship.
33.

Have you or anyone close to you ever been a member of the Fraternal

Order of Police? Have you ever made contributions to the FOP?
34.

As a result of your experiences with crime or law enforcement is there

anything that would cause you to lean in favor of the detention officer defendant in
5

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 6 of 12

this case?
35.

Would any of you be inclined to give a jail or prison official’s testimony

about an incident greater weight than another person’s?
36.

Would any of you be inclined to give a medical doctor’s testimony

greater weight than another person’s?
37.

Would any of you be inclined to give a nurse’s testimony greater weight

than another person’s?
38.

Some people would have trouble giving money for emotional pain and

suffering. Other people think money for emotional pain and suffering is okay. How
many of you are closer to people who think money for pain and suffering is okay?
How many of you are closer to the people who would have trouble giving money for
pain and suffering? Please tell me about that.
39.

Some people have strong feelings about lawsuits.

How many of you

have read about or heard persons in the media or persons you know talk about tort
reform, verdicts being too high, lawyers taking advantage, frivolous lawsuits, verdicts
hurting businesses or city or county governments, or similar topics? Please tell me
about that. How do you feel about lawsuits? What do you think about tort reform?
How do you feel about lawsuits brought by inmates?
40.

Who here has–or knows anyone who has–ever been a victim of police
6

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 7 of 12

or jail misconduct or abuse? Please tell me about that.
41.

Who here has–or knows anyone who has–ever been physically

assaulted? Please tell me about that.
42.

Who here has–or knows anyone who has–ever been grabbed around the

throat by someone who was angry? Please tell me about that.
43.

Who here has–or knows anyone who has–ever had their head forcefully

banged on a hard surface? Please tell me about that.
44.

Who here has–or knows anyone who has–ever hit their head hard enough

for a knot to form? Please tell me about that.
45.

Who here has–or knows anyone who has–ever suffered nosebleeds that

persisted for days or weeks? Please tell me about that.
46.

Who here has–or knows anyone who has–ever suffered severe

headaches? Please tell me about that.
47.

Who here has–or knows anyone who has–ever suffered double vision?

Please tell me about that.
48.

Who here has–or knows anyone who has–ever suffered Bell’s Palsy?

Please tell me about that.
49.

Who here has–or knows anyone who has–ever suffered a closed head

injury such as a concussion? Please tell me about that.
7

Case 3:07-cv-00438-VEH

50.

Document 56

Filed 06/15/2009

Page 8 of 12

In addition to whether the defendant violated Kris’s constitutional rights,

a question on the verdict form will be how much money Kris should get to
compensate him. When figuring this out, some folks feel you should only consider
the amount of harm. Other folks feel it is important to consider other things, such as
how sorry they might feel for the plaintiff, whether the defendant can afford it,
whether awarding money would make persons not want to become jailers, whether
awarding money might cause Lauderdale County to raise taxes, and whether the
money would do any good or would be a windfall to Kris. How many of you are
closer to people who would base their verdict amount only on the amount of harm?
How many of you are closer to the people who think it’s important to take those other
things into account? Please tell me about that. The reason I am asking about matters
other than the amount of harm is the law requires you to figure out the dollar amount
of the compensation portion of any verdict based only on the amount of harm.
Nothing else. That is the law. Now knowing that, who might still have trouble
factoring out everything except the amount of harm?
51.

Kris Thornton did not lose any wages or have to pay for any of the

medical treatment he received. There is not going to be any evidence that Kris
Thornton lost any money out of his pocket due to the defendant’s actions. During
the trial we’ll tell you about the pain and suffering Kris experienced, but there is
8

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 9 of 12

nothing on paper with prices, like medical bills and wage statements. If you decide
that the defendant caused Kris’s pain and suffering, what problems, if any, would you
have including money in your verdict for that pain and suffering?
52.

Some people have philosophical or moral opposition to money for pain

and suffering. Others don’t. Where do you fall between them?
53.

Compensation is money to balance harm. Punitive damages are to

punish whoever did the harm and to stop their wrongdoing and the wrongdoing of
others in the future. Some folks believe that works. Others think that punitive
damages don’t work. What is your best guess about it? Which way do you lean?
54.

How did you or do you punish your children? What consequences did

you or do you impose on your children for misbehavior? What made the punishment
or consequences necessary? How did you decide the severity of the consequences?
What was or is the “ultimate” punishment or consequence for your children? Why
did it or does it work? Please tell me about that.
55.

In this kind of case you decide based on whether we are more likely right

than wrong. You can have doubts on both sides. As many doubts as you want. As
long as after you weigh all the doubts you believe we are more likely right than
wrong. Since that’s all we have to do, some folks think that’s not enough because it
makes it too hard on the other side, the defense. Maybe even a little unfair. Other
9

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 10 of 12

folks think it’s okay. Are you closer to thinking it might be a little unfair? Or are you
closer to the folks who think it’s okay? Where do you come between the two? Who
thinks it might be a little unfair? Who is closer to folks who think it’s okay? Please
tell me about that.
56.

Given the kind of person you are, your attitudes, life experiences,

opinions, everything about you, what is there about you that might help you, even a
little, in being a juror on this kind of case? Other than your ability to be fair and
listen to both sides?
57.

Given the kind of person you are, your attitudes, life experiences,

opinions, everything about you, what is there about you that you think might make
it just a little bit harder for you to be a juror on this kind of case?
58.

Responsibility means paying enough money compensation to fully equal

the losses and the level of harm – without putting anything into the scale except those
losses and harms. That’s the law. Who here thinks they might have trouble keeping
things off the scale that don’t belong there?
59.

What else is there – anything at all – that you would want to know about

you, if you were me standing up here and trying to decide who will be on the jury?
Anything? Even if you are not sure it makes any difference?
60.

If you are a juror in this case, you will have some rights. It is extremely
10

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 11 of 12

important that you understand these rights, and that you will exercise them as often
as the need arises. First you will have the right to hear all the testimony. So if a
witness says something you don’t hear, will you be comfortable raising your hand and
telling the judge, “Your Honor, I did not hear what the witness said.” Will you do
that?
61.

If you are a juror in this case you will have a second right, the right to

understand the law. Nothing can be more important. But every so often during
deliberations, jurors disagree over what the law is. Sometimes a juror is just not sure.
Sometimes a discussion will start about what the law really is. So if any of that
happens, instead of trying to decide it among yourselves, will you be comfortable
telling your foreperson to knock on the jury room door and ask the bailiff to tell the
judge that there is something about the law you need to hear about again?

11

Case 3:07-cv-00438-VEH

Document 56

Filed 06/15/2009

Page 12 of 12

Respectfully submitted,

Henry F. Sherrod III
Alabama Bar No. ASB-1200-D63H
HENRY F. SHERROD III, P.C.
119 South Court Street
P. O. Box 606
Florence, Alabama 35631-0606
Phone: 256-764-4141
Fax: 877-684-0802
Email: hsherrod@hiwaay.net
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2009, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which will send notification of such
filing to the following: Daryl L. Masters.

12

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5
6
7
8

BETTY LOU HESTON,
PLAINTIFF,
V.
CITY OF SALINAS, ET
AL.,

9
10

DEFENDANTS.
_______________________

)
)
)
)
)
)
)
)
)
)
)

C-05-03658-JW
MAY 14, 2008
VOLUME 1
PAGES 138 - 399

11
12

THE PROCEEDINGS WERE HELD BEFORE

13

THE HONORABLE UNITED STATES DISTRICT

14

JUDGE JAMES WARE

15

A P P E A R A N C E S:

16

FOR THE PLAINTIFF:

17

THE LAW OFFICES OF JOHN BURTON
BY: JOHN BURTON
414 SOUTH MARENGO AVENUE
PASADENA, CALIFORNIA 91101

18
19
20

WILLIAMSON & KRAUSS
BY: PETER M. WILLIAMSON
18801 VENTURA BOULEVARD
SUITE 206
TARZANA, CALIFORNIA 91356

21
22

(APPEARANCES CONTINUED ON THE NEXT PAGE.)

23
24
25

OFFICIAL COURT REPORTERS:IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074
JOANMARIE TORREANO, CSR CRR
CERTIFICATE NUMBER 6504
138

U.S. COURT REPORTERS

1
2
3
4
5
6
7
8
9
10
11
12
13

.

14

VERY WELL.

AT THIS POINT THE COURT WILL

15

CALL ON COUNSEL FOR PLAINTIFF FOR OPENING

16

STATEMENT.

17

MR. BURTON:

18

(WHEREUPON, COUNSEL FOR THE PLAINTIFF

19
20

THANK YOU, YOUR HONOR.

GAVE HIS OPENING STATEMENT.)
MR. BURTON:

GOOD MORNING, FOLKS.

AGAIN,

21

THANK YOU FOR BEING HERE AND PUTTING UP WITH THE

22

JURY SELECTION.

23

DURING 2003 THE CITY OF SALINAS POLICE

24

DEPARTMENT EQUIPPED ITS OFFICERS WITH A RELATIVELY

25

NEW DEVICE, A TASER M26.

IT'S REFERRED TO AS AN
151

U.S. COURT REPORTERS

1
2
3

ECD OR ELECTRICAL CONTROL DEVICE.
THESE DEVICES WERE PURCHASED FROM THE
DEFENDANT TASER INTERNATIONAL.

4

THESE ARE MARKETED -- THEY WERE DESIGNED

5

AND THEY'RE SOLD AS A NONLETHAL ALTERNATIVE TO USE

6

TO CONTROL PEOPLE WHO ARE OUT OF CONTROL, WHO ARE

7

IRRATIONAL, FOR WHATEVER REASON, WHO ARE NOT

8

RESPONSIVE TO VERBAL COMMANDS BUT WHO DON'T NEED TO

9

BE STOPPED WITH A FIREARM.

10

THIS CASE IS ABOUT THE MANUFACTURER'S

11

RESPONSIBILITY, THAT'S TASER'S RESPONSIBILITY TO

12

TEST THE DEVICE BEFORE IT'S PUT ON THE MARKET TO

13

MAKE SURE THAT IT'S SAFE FOR HOW IT MIGHT BE USED

14

AND ALSO TO WARN ABOUT DANGERS THAT MIGHT ARISE

15

FROM ITS USE.

16

EXCESSIVE USE OF THE DEVICE; THAT IS, TOO MUCH

17

ELECTRICITY BEING USED.

18

AND THESE DANGERS ARISE FROM THE

THIS CASE IS ALSO ABOUT THE

19

RESPONSIBILITY OF A POLICE DEPARTMENT, IN THIS CASE

20

THE CITY OF SALINAS POLICE DEPARTMENT, TO MAKE SURE

21

ITS OFFICERS ARE PROPERLY TRAINED IN USING DEVICES

22

LIKE THE TASER AND ALSO THAT THEIR USE OF THE

23

DEVICE IS PROPERLY MONITORED SO THAT MISUSE CAN BE

24

IDENTIFIED AND CORRECTED BEFORE IT CAUSES HARM.

25

THIS CASE IS ALSO ABOUT THE DUTY OF
152

U.S. COURT REPORTERS

1

SUPERVISORS WHO ARE ON THE SCENE, WHO ARE IN

2

CONTROL OF OFFICERS TO MAKE SURE THAT THEIR

3

SUBORDINATES ACT APPROPRIATELY.

4

LINE OFFICERS THEMSELVES AND FOLLOWING THE

5

GUIDELINES THAT THEY HAVE BEEN TRAINED TO FOLLOW

6

AND THE RULES OF LAW THAT GOVERN THEIR CONDUCT.

7

AND IT'S ABOUT THE

THE EVIDENCE IN THIS CASE WILL SHOW THAT

8

ALL OF THESE DEFENDANTS FAILED TO MAKE AND MEET

9

THESE RESPONSIBILITIES, AND THEREFORE, WE'RE GOING

10

TO BE ASKING YOU AT THE END OF THE TRIAL TO FIND

11

THEM RESPONSIBLE FOR THE DEATH OF ROBERT C. HESTON.

12

ON FEBRUARY 19TH, 2005, ROBERT H.

13

HESTON, THE GENTLEMAN TO MY LEFT, AND HIS WIFE,

14

BETTY HESTON, CALLED 911 FOR HELP WITH THEIR SON.

15

HE WAS OBVIOUSLY AGITATED AND DELUSIONAL.

16

AND AS YOU'LL HEAR, THIS IS NOT THE FIRST TIME THAT

17

HE HAD BEEN IN THIS KIND OF A CONDITION.

18

HE HAD HAD A SERIES OF PROBLEMS BECAUSE OF HIS OWN

19

HISTORY OF ADDICTION TO METHAMPHETAMINE.

20

HAD PERIODS OF SOBRIETY FOLLOWED BY PERIODS OF

21

RELAPSE.

22

BECOME IRRATIONAL AND DELUSIONAL IN THE PAST.

23

IN FACT,

HE HAD

HE WOULD HAVE INCIDENTS WHERE HE WOULD

ON THIS DAY THEY SAW HIM ACTING STRANGELY

24

AND THEY KNEW THE SIGNS AND THEY CALLED THE POLICE

25

FOR HELP.
153

U.S. COURT REPORTERS

1

ROBERT C. HESTON WAS EXACTLY THE KIND OF

2

PERSON THAT THIS TASER WAS DESIGNED TO HELP, TO

3

TAKE INTO CUSTODY SAFELY SO THAT HE COULD GET THE

4

TREATMENT THAT HE NEEDED FOR HIS CONDITION, WHICH

5

AT THIS POINT WAS A MEDICAL PROBLEM AS WELL AS TO

6

SECURE SAFELY THIS OUT-OF-CONTROL INDIVIDUAL AND

7

PRESERVE PUBLIC ORDER.

8

THESE SALINAS POLICE OFFICER DEFENDANTS,

9

AND THAT'S SERGEANT DOMINICI, WHO WAS THE SERGEANT

10

IN CHARGE OF THE OPERATION AT THE HOUSE, AND THERE

11

WAS A SECOND SERGEANT RUIZ WHO CAME DURING THE

12

INCIDENT, AND THEN TWO OTHER OFFICERS WHO FIRED

13

THEIR TASERS, OFFICERS LIVINGSTON AND GODWIN.

14

WERE SENT TO HELP THE HESTONS WITH THIS PROBLEM.

15

THEY

INSTEAD OF ONLY FIRING ONE OF THEIR

16

TASERS ONE TIME, WHICH WOULD HAVE KNOCKED

17

MR. HESTON DOWN AND ALLOWED HIM TO BE HANDCUFFED

18

SAFELY, THEY FIRED THREE TASERS.

19

JUST DISCHARGING EACH ONE TIME, THESE THREE TASERS

20

WERE DISCHARGED A TOTAL OF 25 TIMES, 25 TIMES INTO

21

AN INDIVIDUAL WHO WAS LYING HELPLESSLY ON HIS

22

PARENTS' LIVING ROOM FLOOR.

23
24
25

AND INSTEAD OF

THEY STOPPED ONLY WHEN MR. HESTON TURNED
PURPLE AND WENT LIMP.
THE REASON THAT HE BECAME LIMP AND
154

U.S. COURT REPORTERS

1

UNRESPONSIVE WAS THAT HE HAD SUFFERED A CARDIAC

2

ARREST, HIS HEART HAD STOPPED BEATING.

3

PARAMEDICS WERE CALLED.

THEY GOT THERE.

4

THEY WORKED ON HIM, ATROPINE, CHEST COMPRESSIONS.

5

THEY GOT HIS HEART RESTARTED AGAIN, BUT IT HAD BEEN

6

STOPPED FOR OVER TEN MINUTES.

7

FRAME WAS DENIED THE OXYGEN, THE BLOOD NECESSARY TO

8

KEEP THE TISSUE ALIVE, AND HE SUFFERED MASSIVE

9

BRAIN DAMAGE.

10

AND DURING THAT TIME

HE WAS TAKEN TO THE HOSPITAL, LA

11

NATIVIDAD MEDIAL CENTER.

12

SUPPORT AND WAS KEPT ALIVE FOR 24 HOURS, BUT ON

13

FEBRUARY 19TH HE WAS DISCONNECTED AND HE PASSED

14

AWAY.

15

HE WAS HOOKED UP TO LIFE

NOW, LET ME TELL YOU A LITTLE MORE

16

DETAIL ABOUT THIS DEVICE, THE TASER.

17

EVERYBODY CAN SEE IT ON THE SCREEN RIGHT THERE.

18

GREAT.

19

AS YOU CAN SEE, IT LOOKS LIKE A PISTOL

20

BUT IT IS NOT A FIREARM.

21

INVOLVED.

22

AND HOPEFULLY

THERE IS NO GUN POWDER

INSTEAD OF HAVING A BULLET COME OUT OF

23

THE BARREL, THERE'S A CARTRIDGE THAT CLIPS ONTO THE

24

END OF THE BARREL AND THIS CARTRIDGE CAN BE CLIPPED

25

ON AND OFF VERY EASILY.
155

U.S. COURT REPORTERS

1

THERE'S A WAY THAT IT CAN BE USED WITH

2

THE CARTRIDGE OUT, BUT THAT'S NOT OF CONCERN IN

3

THIS CASE.

4

CARTRIDGES MOUNTED.

5

THESE TASERS WERE FIRED WITH THE

AND AS YOU CAN SEE FROM THIS SLIDE, THE

6

CARTRIDGE FIRES THESE TWO PROBES.

7

TO 20-FOOT WIRES, AND AT THE END OF THE PROBE ARE

8

THESE DARTS.

9

ARE STRAIGHT LITTLE MINI HARPOONS THAT ARE BARBED.

10

THEY'RE ATTACHED

THEY'RE SORT OF LIKE FISH HOOKS THAT

AND THEY STICK INTO THE TARGET, EITHER

11

INTO THE SKIN OR INTO THE CLOTHING.

12

TWO DARTS CONNECT WITH THE TARGET OR ARE ABLE TO

13

COMPLETE A CIRCUIT AND PERFECT CONNECTIONS ARE NOT

14

REQUIRED FOR THAT, JUST ENOUGH ELECTRICITY TO

15

TRAVEL, THEN THERE'S A FIVE-SECOND CYCLE OF

16

ELECTRICITY INTO THE HUMAN BEING OR WHOEVER THE

17

TARGET IT.

18

AND ONE THESE

AND THIS IS A VERY PARTICULAR KIND OF

19

ELECTRICITY YOU'LL HEAR A LOT ABOUT.

20

LITTLE TINY PULSES AT A RATE OF 20 PER SECOND.

21

IT'S IN

THESE PULSES DO NOT ELECTROCUTE A PERSON

22

LIKE LET'S SAY AN ELECTRIC CHAIR AND STOP THEIR

23

HEART.

24
25

WHAT THESE PULSES DO IS THAT THEY
OVERRIDE THE ELECTRICAL SYSTEM THAT WE ALL HAVE IN
156

U.S. COURT REPORTERS

1

OUR BODIES WHERE THE BRAIN SENDS ELECTRICAL

2

IMPULSES TO THE MUSCLE AND TELLS THEM TO CONTRACT.

3

THESE PULSES TELL THE MUSCLES IN THE BODY

4

TO CONTRACT.

AND SO THE PERSON, WHILE THE TASER

5

CYCLE IS GOING THROUGH THEM, GOES THROUGH

6

INVOLUNTARY MUSCLE CONTRACTIONS.

7

GENERALLY TO MAKE THE PERSON RIGID AND FALL DOWN,

8

ESSENTIALLY PARALYZE MOMENTARILY AND UNABLE TO

9

CONTROL HIS OWN MOVEMENTS.

THE EFFECT IS

10

THE TASER WORKS AS FOLLOWED:

11

TRIGGER IS PULLED THESE DARTS GO OUT AND CONNECT

12

AND THERE'S AN AUTOMATIC CYCLE OF FIVE SECONDS.

13

WHEN THE

THERE'S THE DEVICE TO STOP IT SHORT OF

14

THE FIVE SECONDS, BUT THAT WAS NOT USED IN THIS

15

CASE.

16

ONCE THE DARTS ARE IMPLANTED, THE TRIGGER

17

CAN BE PULLED A SECOND TIME OR A THIRD TIME OR A

18

FOURTH TIME, EACH TIME DELIVERING A NEW FIVE-SECOND

19

CYCLE.

20

THE TRIGGER CAN ALSO BE HELD DOWN AND IT

21

WILL CONTINUE TO DELIVER ELECTRICITY UNTIL THE

22

TRIGGER IS RELEASED BEYOND THE FIVE-SECOND BUILT-IN

23

LIMIT.

24

THE TASER HAS A VERY SIGNIFICANT FEATURE

25

TO HOLD OFFICERS ACCOUNTABLE FOR OVERUSE OR MISUSE
157

U.S. COURT REPORTERS

1

AND THIS FEATURE IS CALLED A DATAPORT.

AND THE

2

DATAPORT IS GOING TO HAVE A HUGE ROLE IN THE

3

EVIDENCE THAT YOU'RE GOING TO HEAR IN THIS CASE.

4

THE DATAPORT HAS SOME SORT OF PLUG AND

5

YOU CAN PLUG IT RIGHT INTO YOUR P.C.

THERE'S A

6

CHIP THAT RECORDS EACH TRIGGER PULL WITH THE TIME

7

STAMP BUILT INTO THE DEVICE ITSELF SO THAT WHEN THE

8

DATAPORT INFORMATION IS DOWNLOADED ONTO THE P.C.,

9

THE POLICE DEPARTMENT CAN GET A LINE-BY-LINE

10

INDICATION EXACTLY WHEN IT WAS FIRED DURING AN

11

INCIDENT.

12

AND THAT'S HOW WE KNOW THAT THESE THREE

13

TASERS, SERGEANT RUIZ, OFFICER LIVINGSTON AND

14

OFFICER GODWIN WERE FIRED 25 TIMES BECAUSE IT'S IN

15

THE DATAPORT.

16

WHEN THE DEVICE IS HELD DOWN, AS YOU'LL

17

SEE FROM THE TESTIMONY, THE DATAPORT RECORDS THESE

18

SERIES OF TRIGGER PULLS EXACTLY FIVE SECONDS APART.

19

SO IF ONE WERE TO PULL THE TRIGGER

20

EXACTLY FIVE SECONDS APART, THEY WOULD BE THE SAME

21

PATTERN AS IF ONE HELD IT DOWN AND IT CYCLED FOR 10

22

OR 15 SECONDS OR MORE.

23

CASE.

24
25

AND YOU'LL SEE THAT IN THIS

TASERS CAN BE DEADLY WHEN THEY'RE CYCLED
TOO MANY TIMES INTO A HUMAN BEING, ESPECIALLY
158

U.S. COURT REPORTERS

1

SOMEONE WHO, LIKE MR. HESTON, IS IN AN EXCITED OR

2

AGITATED STATE.

3

THE OFFICERS KNEW THAT ROBERT HESTON WAS

4

IN A DELIRIOUS AND AGITATED STATE AND THAT'S WHY

5

THEY WERE CALLED.

6

AND THEIR OWN DEPARTMENT TRAINED THEM TO

7

RECOGNIZE THIS AS A HEALTH PROBLEM AND TO CALL

8

PARAMEDICS TO HELP THEM DEAL WITH IT.

9

VIOLATED THAT POLICY, THAT TRAINING, BY

10

THEY

ENCOUNTERING MR. HESTON WITHOUT THE PARAMEDICS.

11

RATHER THAN HELP MR. HESTON GET SAFELY

12

INTO CUSTODY SO THAT HE COULD BE TREATED AND

13

PUNISHED IF APPROPRIATE, BECAUSE CERTAINLY

14

INJECTION OF METHAMPHETAMINE IS A CRIME, INSTEAD OF

15

DOING THAT THEY CYCLED THEIR TASERS 25 TIMES AND HE

16

DIED.

17

PLAINTIFF'S EXPERT WITNESS ON THE EFFECT

18

OF THE TASER IS DR. MARK MEYERS.

19

CERTIFIED CARDIOLOGIST FROM SOUTHERN CALIFORNIA,

20

AND HE HAS A SPECIALTY IN WHAT IS CALLED

21

ELECTROPHYSIOLOGY.

22

HE'S A BOARD

THERE ARE TWO KINDS OF CARDIOLOGISTS,

23

THERE ARE CARDIOLOGISTS CONCERNED WITH THE

24

STRUCTURE OF THE HEART AND KEEPING THE ARTERY CLEAN

25

AND FLOWING AND THEY'RE THE ONES THAT DO
159

U.S. COURT REPORTERS

1

ANGIOPLASTIES AND CORONARY ARTERY BYPASS GRAFTS AND

2

THOSE SORTS OF THINGS.

3

PLUMBERS.

4

YOU CAN THINK OF THEM AS

AND THEN THERE'S A WHOLE OTHER KIND OF

5

CARDIOLOGIST THAT IS CONCERNED WITH ONLY THE

6

ELECTRICAL SYSTEM THAT CONTROLS THE PUMPING OF THE

7

HEART SO THAT THE BLOOD GOES THROUGH THE BODY AND

8

PROFUSES THE TISSUES AND KEEPS US ALIVE.

9

LIKE ELECTRICIANS.

10
11

THEY'RE

THOSE ARE CALLED

ELECTROPHYSIOLOGISTS.
AND TASER HAS DESIGNATED AN

12

ELECTROPHYSIOLOGIST WHO WILL ALSO BE TESTIFYING ON

13

THESE ISSUES AND HIS NAME IS DOCTOR RICHARD LUCERI.

14

AND YOU'LL SEE THAT DR. LUCERI AND DR. MEYERS'

15

OPINIONS MATCH MORE THAN THEY DIVERGE IN THIS CASE.

16

AND THEY'RE THE IMPORTANT MEDICAL

17

EXPERTS, BECAUSE THE QUESTION THAT YOU'RE GOING TO

18

BE ASKED TO DECIDE IS WHAT CAUSED THIS CARDIAC

19

ARREST, WHAT CAUSED ROBERT HESTON'S HEART TO STOP

20

BEATING ON FEBRUARY 19TH.

21

DR. MEYERS WILL EXPLAIN TO YOU THAT WHEN

22

MUSCLES CONTRACT, WHEN WE CONTRACT OUR MUSCLES

23

THERE'S A WASTE PRODUCT PRODUCED.

24

WE DRIVE OUR CARS THERE IS AUTOMOBILE EXHAUST, IT'S

25

A WASTE PRODUCE OF MUSCLE CONTRACTIONS AND IT'S

IT'S LIKE WHEN

160

U.S. COURT REPORTERS

1

CALLED LACTIC ACID OR LACTIC ACID BUILDUP.

2

AND WE HAVE ALL EXERCISED AND WE ALL FELT

3

THE BURN OR THE SORENESS THE NEXT DAY.

4

LACTIC ACID.

5
6

THAT'S

AND WHEN THE TASERS CONTRACT THE MUSCLES,
THAT ALSO PRODUCES LACTIC ACID.

7

WHEN LACTIC ACID IS PRODUCED, IT GOES IN

8

THE BLOODSTREAM AND THAT'S HOW IT'S ELIMINATED FROM

9

THE BODY.

THE BLOOD THEN FLOWS THROUGH THE LUNGS

10

AND BREATHING IS THE PROCESS THAT NEUTRALIZES THE

11

LACTIC ACID.

12

IF SOMEONE EXERCISES TOO HARD, FASTER

13

THAN THE BODY CAN COMPENSATE FOR IT AND THAT'S

14

CALLED ANAEROBIC EXERCISE, THE BLOOD ACID IN THE

15

SAME BUILDS UP.

16

WHEN THE BLOOD ACID BUILDS UP, THE

17

MEASURE OF THE BLOOD ACID, WHICH IS CALLED PH,

18

DROPS.

19

BLOOD ACID GOES UP, PH DROPS.
NOW, VIGOROUS EXERCISE WILL LOWER A

20

PERSON'S PH.

IT ONLY BECOMES DANGEROUS IF IT DROPS

21

TOO FAR, TOO FAST.

22

TOO FAST, THAT ALONE STOPS THE HEART.

23

CONDITION OF ELEVATED BLOOD ACID, WHICH IS MEASURED

24

AS LOWER PH, IS CALLED ACIDOSIS.

25

HEARING A LOT ABOUT ACIDOSIS IN THIS CASE.

BUT IF THE PH DROPS TOO FAR,
THIS

AND YOU'LL BE

161

U.S. COURT REPORTERS

1
2

AND THE SOURCE OF THE ACIDOSIS IS THE
LACTIC ACID PRODUCED BY THE MUSCLE CONTRACTIONS.

3

PEOPLE DON'T NORMALLY EXERCISE THEMSELVES

4

INTO CARDIAC ARREST FROM ACIDOSIS.

IT ACTUALLY

5

HAPPENS, OCCASIONALLY PEOPLE WILL DROP DEAD DURING

6

A MARATHON OR A TRIATHLON OR SOMETHING, IT ACTUALLY

7

DOES HAPPEN BUT IT'S VERY, VERY RARE AND THE REASON

8

IS IS SIMPLY THAT THE BODY HAS MECHANISMS THAT TELL

9

US, HEY, YOU'RE GETTING FATIGUED, YOU'RE WORKING

10

TOO HARD, WE HYPERVENTILATE, WE SLOW DOWN, WE SIT,

11

WE REST, WE ALLOW OUR BLOOD ACID TO RETURN TO

12

NORMAL.

13

WHEN SOMEONE IS HOOKED UP TO A TASER AND

14

THE TASER IS TELLING THE BLOOD, THE MUSCLES TO

15

CONTRACT OVER AND OVER AGAIN, THE BRAIN IS NO

16

LONGER IN CONTROL.

17

EQUATION AND THE BLOOD ACID CAN BE RAISED, THE SAME

18

WAY SAYING THAT THE PH CAN BE LOWERED TO CRITICAL

19

LEVELS AND UNDER CIRCUMSTANCES WHERE THE PERSON IS

20

IN EXCRUCIATING PAIN FROM THE TASER AND UNDER A

21

GREAT DEAL OF STRESS BECAUSE OF THE OVERALL

22

SITUATION AND THAT IS THE RECIPE FOR CARDIAC

23

ARREST.

24
25

THAT RECUPERATION IS OUT OF THE

NOW, BEFORE SELLING THIS NEW REP -- THIS
TASER M26, TASER INTERNATIONAL TESTED IT ON PIGS.
162

U.S. COURT REPORTERS

1

BUT THEY ONLY TESTED IT TO SEE WHETHER OR NOT THE

2

ELECTRICAL CURRENT WAS STRONG ENOUGH TO STOP THE

3

HEART.

WHAT IS CALLED ELECTROCUTION.

4

AND IT WASN'T.

THE -- FROM TASER'S POINT

5

OF VIEW THOSE -- THOSE PIG EXPERIMENTS WERE QUITE

6

SUCCESSFUL.

7

SAFE BECAUSE THE CURRENT WAS SIMPLY NOT STRONG

8

ENOUGH TO GO IN THROUGH ALL THE TISSUES, THE

9

MUSCLE, INTO THE HEART AND THEN KNOCK THE HEART OUT

AND THEY PROMOTED THEIR DEVICE AS VERY

10

OF IT'S NORMAL ELECTRICAL RHYTHM IN SOME DEADLY

11

ALTERNATIVE RHYTHM.

12

BUT TASER, AS YOU'LL HEAR TODAY, DID NOT

13

TEST THE EFFECT OF LONGER DURATION EXPOSURES,

14

ESPECIALLY ON THE ACID LEVEL OF THESE PIGS.

15

TASER DID NOT WARN, WHEN IT BEGAN SELLING

16

THIS DEVICE TO SALINAS AND OTHER POLICE

17

DEPARTMENTS, WATCH OUT FOR REPEATED EXPOSURES

18

BECAUSE PEOPLE MIGHT BECOME TOO ACIDOTIC AND DIE.

19

BEGINNING IN 2003, THE U.S. MILITARY

20

BEGAN STUDYING THE TASER.

IT VOICED CONCERN OVER

21

WHETHER TOO MANY, TOO LONG EXPOSURES WOULD CREATE

22

ACIDOSIS.

23

YOU'LL HEAR A LOT ABOUT DR. JAUCHIM IN THIS CASE --

24

CONDUCTED AN EXPERIMENT.

25

AND PUT THEM UNDER ANESTHESIA BECAUSE THE

A DOCTOR NAMED JAMES JAUCHIM -- AND

HE TOOK A NUMBER OF PIGS

163

U.S. COURT REPORTERS

1

CRUELTY-TO-ANIMAL PEOPLE DEMANDED THAT AND MEASURED

2

THE EFFECT OF WHAT DIFFERENT TASER DOSAGES WERE ON

3

THE PH LEVEL AND THE LACTIC ACID PRODUCTION OF

4

THESE ANIMALS.

5

AND WHAT HE DETERMINED, AND WHAT YOU'LL

6

SEE IN THE CASE GRAPHICALLY PRESENTED TO YOU, IS

7

THAT THE MORE SOMEONE IS SHOCKED WITH A TASER, OR

8

IN THIS CASE AN ANESTHETIZED PIG, THE MORE THE

9

LACTIC ACID IS DISTRIBUTED IN THE BLOODSTREAM, THE

10
11

HIGHER THE LACTIC ACID, THE LOWER THE PH.
ONE SHOCK, ALTHOUGH IT CREATES A

12

STATISTICALLY SIGNIFICANT CHANGE IN LACTATE, DOES

13

NOT CREATE ANYTHING NEAR A DANGER OR A CLINICALLY

14

SIGNIFICANT CHANGE.

15
16
17

THREE, A MORE PROFOUND CHANGE, BUT STILL
WITHIN THE REALM OF SAFETY.
BUT 18, 18 DOSES, WHICH IS ABOUT

18

TWO-THIRDS OF WHAT MR. HESTON RECEIVED, PUT THESE

19

PIGS RIGHT INTO THE DANGER ZONE WHERE CARDIAC

20

ARREST FROM ACIDOSIS IS LIKELY.

21

WHEN WORD OF DR. JAUCHIM'S STUDY GOT TO

22

TASER INTERNATIONAL AND TO ITS CEO PATRICK SMITH,

23

WHO IS PRESENT IN COURT AND WE WILL BE PLAYING YOU

24

AN EXCERPT FROM HIS DEPOSITION LATER TODAY.

25

THEY FOUND OUT ABOUT DR. JAUCHIM'S STUDY, THIS WAS

WHEN

164

U.S. COURT REPORTERS

1

SOMETIME IN 2004, THEY DECIDED THEY BETTER FINALLY

2

WARN THEIR CUSTOMERS, THESE POLICE DEPARTMENTS,

3

ABOUT THE DANGER OF EXTENDED DURATION OF TASER

4

APPLICATIONS.

5

THEY ISSUED A WARNING, BUT IT WAS BURIED

6

AS SLIDE 108 IN A 1 -- LET ME GET THE RIGHT NUMBER

7

HERE -- AND 174 POWER POINT PRESENTATION MAILED OUT

8

SOMETIME BETWEEN JANUARY 2004 AND JANUARY 2005.

9

THE SALINAS POLICE OFFICERS INVOLVED IN

10

THIS INCIDENT NEVER SAW THIS WARNING.

IT WAS NEVER

11

RELAYED FROM TASER THROUGH THE SALINAS POLICE

12

DEPARTMENT TO THEM.

13

WERE UNAWARE OF ANY HEALTH RISK ASSOCIATED WITH

14

THEIR 25 TASINGS OF MR. HESTON.

THEY ALL WILL TESTIFY THEY

15

NOW, LET ME TELL YOU WHAT HAPPENED IN

16

THIS INCIDENT IN A LITTLE MORE DETAIL, WHAT THE

17

PLAINTIFFS SAY THE EVIDENCE WILL SHOW.

18

GOING TO BE SOME CONFLICTS IN THE EVIDENCE.

19

AND THERE'S

ON THIS DAY, FEBRUARY 19TH, THE

20

PLAINTIFFS ARE WORRIED ABOUT THEIR SON.

HE'S ONLY

21

BEEN OUT OF PRISON LESS THAN A MONTH.

22

DOING WELL.

23

HIS CONCRETE BUSINESS.

24

PROGRAMS AND ALL OF A SUDDEN HE'S ACTING VERY

25

STRANGE AND IRRATIONAL.

HE'S BEEN

HE'S BEEN WORKING WITH HIS FATHER IN
HE'S BEEN ATTENDING

HE THINKS THERE'S SOMEBODY
165

U.S. COURT REPORTERS

1

IN THE ATTIC WITH A GUN THREATENING THE FAMILY.

2

HE'S AGITATED.

3
4

THEY HAVE BEEN THROUGH THIS BEFORE, THEY
KNOW WHAT THIS MEANS.

5

HE HAS RELAPSED.

THEY CALL THE POLICE DEPARTMENT.

SEND

6

OVER SOMEONE TO HELP.

7

CURT KASTNER, THEIR SON-IN-LAW, THAT'S MISTY'S

8

HUSBAND, COMES OVER TO HELP, AND A FRIEND NAMED

9

CLIFF SATREE COMES OVER TO HELP.

10

OFFICERS ARE DISPATCHED.

THE OFFICERS COME, THEY TALK TO THE

11

FATHER, THEY TALK TO THE SON.

12

OFFICERS ABOUT SOMEONE IN THE ATTIC WITH A GUN

13

THREATENING THE FAMILY.

14

THE SON TELLS THE

THE OFFICERS BELIEVE THAT HE'S -- HE'S ON

15

DRUGS.

16

IRRATIONAL, BUT THEY DECIDE TO TAKE NO ACTION AND

17

THEY LEAVE.

18

THEY LEAVE.

19

THEY CONCEDE HE'S DELUSIONAL AND

THEY'RE THERE FOR 10, 15 MINUTES AND

NOT FIVE MINUTES AFTER THEY LEFT THE SON

20

BECOMES EXTREMELY AGITATED AND EXCITED.

HE BEGINS

21

POUNDING ON THE CEILING.

22

BEGINS THROWING THINGS OUT OF THE DOOR.

23

HIS FATHER DOWN.

24

CALLED 911.

25

CALLS 911 AGAIN, "YOU HAVE TO COME BACK RIGHT

HE'S OPENING THE DOOR AND
HE KNOCKS

911 IS CALLED AGAIN, HIS FATHER

YOU'LL HEAR THE CALL.

CURT KASTNER

166

U.S. COURT REPORTERS

1

AWAY," AND HE CALLS AND HE'S OUT OF CONTROL AND

2

CLIFFORD SATREE CALLED 911.

3

AND THE THING ABOUT CLIFFORD SATREE'S 911

4

CALL, WHICH YOU'LL HEAR PLAYED TODAY, IS THAT HE

5

STAYS ON THE LINE AND DOES A PLAY-BY-PLAY OF

6

EXACTLY WHAT HAPPENED NEXT AND SO YOU'LL BE ABLE TO

7

HEAR IN REALTIME EXACTLY HOW THESE EVENTS UNFOLDED.

8
9

OFFICER DOMINICI, SERGEANT DOMINICI AND
SERGEANT FAIRBANKS ARE THE FIRST TO RETURN.

10

THEY SEE MR. HESTON AT THE DOOR.

THAT'S

11

THE SON, THROWING THINGS OUT.

IN FACT, HE THROWS

12

SOMETHING, A PIECE OF WOOD, MOLDING, WHATEVER IT

13

WAS, AND IT HITS SERGEANT DOMINICI IN THE CENTER OF

14

HIS BULLET PROOF VEST AND IT BOUNCES OFF.

15

DOMINICI IS NOT INJURED.

SERGEANT

16

HE FIRES HIS TASER AT MR. HESTON.

17

SERGEANT DOMINICI HAS HAD LESS THAN

18

TWO HOURS OF TASER TRAINING AND HAS NEVER FIRED THE

19

PROBES BEFORE, EVEN AT A TARGET.

20

ONE OF THE PROBES MISSES AND GOES IN THE

21

DOOR JAM.

22

TASER HAS NO EFFECT OTHER THAN TO FURTHER AGITATE

23

ROBERT HESTON.

24
25

SO THERE'S NO COMPLETED CIRCUIT.

THE

SERGEANT -- OFFICER FAIRBANKS FIRES ONLY
A FEW SECONDS AFTER SERGEANT DOMINICI'S
167

U.S. COURT REPORTERS

1

UNSUCCESSFUL FIRING, BUT HIS IS UNSUCCESSFUL, TOO.

2

HE'S STANDING NEAR THE MAXIMUM RANGE OF

3

THE TASER.

REMEMBER, THE WIRES ARE ONLY 21 FEET,

4

LESS THAN THE DISTANCE FROM ME TO YOU.

5

AS -- AS MR. HESTON FALLS BACKWARD FROM

6

THE TASER, THE WIRES BREAK OR THE DARTS COME OUT,

7

THE DEVICE LOSES ITS EFFECT.

8

AND YOU'LL HEAR CLIFFORD SATREE SAY HE'S PULLING A

9

DART OUT.

10

HE WAS ACTUALLY ABLE TO PULL A DART OUT

BECAUSE HE WASN'T GETTING ANY CURRENT.

11
12

AND HE'S TASED AGAIN.

SERGEANT RUIZ RETURNS ALONG WITH OFFICER
LIVINGSTON AND OFFICER PAREDEZ.

13

RUIZ TRIES TO ENGAGE ROBERT HESTON IN

14

SOME CONVERSATION.

15

CALM HIM DOWN.

16

THE ATTIC WITH THE GUN.

17

"HEY, MAN, WHAT IS GOING ON?"

HE'S STILL TALKING ABOUT THE GUY IN
STILL.

SERGEANT RUIZ FIRES HIS TASER.

AT THE

18

SAME TIME -- AND EVERY WITNESS WHO COMES IN WILL

19

SAY IT'S VIRTUALLY SIMULTANEOUS -- OFFICER

20

LIVINGSTON FIRES HIS TASER, EVEN THOUGH THE

21

TRAINING FOR THE CITY OF SALINAS IS THAT ONLY ONE

22

DEVICE SHOULD BE USED AT A TIME AND THE SECOND

23

SHOULD BE USED ONLY IF THE FIRST IS UNSUCCESSFUL AS

24

BACKUP.

25

MR. HESTON STUMBLES BACKWARDS FROM THE
168

U.S. COURT REPORTERS

1

EFFECT OF THE TASER.

2

LIVINGSTON FOLLOW HIM INSIDE OF THE HOUSE.

3

WANT TO KEEP HIM IN VIEW.

4

WIRE SLACK SO THAT THEY DON'T BREAK OR COME OUT SO

5

THAT THE TASERS WILL HAVE THEIR EFFECT.

6

SERGEANT RUIZ AND OFFICER
THEY

THEY WANT TO KEEP THE

THEY CYCLE THE DEVICES OVER AND OVER

7

AGAIN.

8

HEAD ON A COFFEE TABLE.

9

MR. HESTON GOES TO THE FLOOR.

HE HITS HIS

OFFICER PAREDEZ COMES IN RIGHT BEHIND

10

THEM AND BEHIND OFFICER PAREDEZ IS OFFICER

11

FAIRBANKS, WHO CLEARS THE WAY, THE GRANDFATHER

12

CLOCK THAT MR. HESTON HAD KNOCKED DOWN AND THEY SEE

13

MR. HESTON ALREADY ON THE FLOOR.

14

JUST A FEW SECONDS AFTER THE FIRING.

THE ESTIMATE IS

15

HE'S ON THE FLOOR PRONE, FACE DOWN, WITH

16

HIS ARMS SORT OF CURLED UNDERNEATH HIM, A POSITION

17

THAT IS CAUSED BY THE CYCLING OF THE TASERS.

18

ON THE GROUND.

19

THEIR TASERS.

20
21

HE'S

THE OFFICERS CONTINUE TO CYCLE

OFFICER LIVINGSTON IS HOLDING THE TRIGGER
DOWN.

22

ANOTHER OFFICER COMES IN THE ROOM,

23

OFFICER GODWIN.

HE FIRES HIS TASER INTO MR. HESTON

24

SO THAT NOW MR. HESTON IS HOOKED UP TO THREE

25

TASERS.

SERGEANT RUIZ'S DATAPORT SHOWS SIX
169

U.S. COURT REPORTERS

1

DIFFERENT FIVE SECOND TRIGGER PULLS.

2
3

OFFICER GODWIN'S SHOWS SIX DIFFERENT
TRIGGER PULLS.

4

OFFICER LIVINGSTON'S SHOWS 13 FIVE-SECOND

5

BURSTS.

6

FIVE SECONDS OF TASER SHOTS ALL SQUEEZED INTO A

7

PERIOD OF ABOUT FIVE SECONDS, ALMOST ALL OF WHICH

8

WAS AFTER HE WAS LYING ON THE FLOOR.

9

THAT'S A TOTAL OF TWO MINUTES AND

ON HIS RIGHT ARM IS OFFICER FAIRBANKS

10

WAITING FOR THE TASER TO STOP SO HE COULD BE

11

HANDCUFFED AND ON HIS LEFT ARM IS OFFICER PAREDEZ,

12

WAITING FOR THE TASER TO STOP SO HE COULD BE

13

HANDCUFFED.

14

AT HIS HEAD IS SERGEANT DOMINICI.

15

ANOTHER OFFICER COMES IN THE ROOM, THIS

16

IS THE SEVENTH OFFICER NOW, TIM SIMPSON.

17

AT THIS POINT OFFICER GODWIN THINKS MAYBE

18

HIS TASER IS NOT WORKING RIGHT AND TAKES THE

19

CARTRIDGE OUT, PUTS IN A NEW ONE, SHOOTS MR. HESTON

20

IN THE BACK, THIS IS THE SIXTH TIME, AND AS SOON AS

21

THAT FIVE-SECOND CYCLE ENDS, THERE ARE NO MORE

22

TASER CYCLING, MR. HESTON IS TURNING BLUE, HE'S

23

LIMP.

24
25

THEY PUT HIM IN HANDCUFFS.
OFFICER FAIRBANKS IMMEDIATELY CALLS FOR

AN AMBULANCE.

THEY ROLL HIM OVER.

OFFICER PAREDEZ
170

U.S. COURT REPORTERS

1

CHECKS HIS CAROTID PULSE AND FINDS NOTHING.

2

CHECKS HIS BREATHING, FINDS NOTHING.

3
4

HE

THEY DON'T TAKE MR. HESTON OUT OF HIS
HANDCUFFS.

5

OFFICER SIMPSON, WHO PUT HIM IN THE

6

HANDCUFFS, IS TOLD TO GET HIS CAMERA AND START

7

TAKING PICTURES.

8

THE PARAMEDICS ARRIVE.

9

TIME HE IS TAKEN OUT OF HANDCUFFS AND THEY'RE ABLE

10

MR. HESTON IS LEFT IN HANDCUFFS.
THEY WORK ON HIM.

BY THIS

TO START HIS HEART AGAIN, BUT IT'S TOO LATE.

11

TOMORROW YOU WILL HEAR FROM A DOCTOR

12

NAMED TERRY HADDIX.

13

FORENSIC PATHOLOGIST AT STANFORD.

14

AUTOPSIES.

15

AUTOPSY FOR MONTEREY COUNTY FOR ITS CORONER'S

16

OFFICE TO DETERMINE WHY ROBERT HESTON DIED.

17

SHE IS A STAFF PHYSICIAN, A
SHE DOES

AND SHE'S THE DOCTOR WHO DID THE

NOW, HIS ACTUAL CAUSE OF DEATH WHICH

18

OCCURS 30 HOURS LATER, IS FAIRLY SIMPLE.

19

MASSIVE ORGAN FAILURE THAT FLOWED FROM BEING BRAIN

20

DEAD FOR 30 HOURS.

21

CAUSE OF DEATH BUT THE CAUSE OF THE CARDIAC ARREST

22

THAT OCCURRED ON FEBRUARY 19TH.

23

IT'S THE

THE REAL ISSUE HERE IS NOT THE

AND DR. HADDIX, WHO IS THE ONLY

24

INDEPENDENT MEDICAL EXPERT YOU'RE GOING TO HEAR IN

25

THIS CASE, NOT BROUGHT IN BY EITHER SIDE TO RENDER
171

U.S. COURT REPORTERS

1

OPINIONS, DID WHAT FORENSIC PATHOLOGISTS, MEDICAL

2

EXAMINERS DO.

3

SHE AUTOPSIED THE BODY, LOOKED AT WHAT

4

EVIDENCE THERE WAS THERE.

5

SHE COULD ABOUT WHAT HAPPENED IN THE TIME RIGHT

6

BEFORE HE DIED, AND SHE ALSO WENT TO GREAT LENGTH

7

TO LEARN ABOUT THE TASER AND ITS EFFECTS.

8

ACTUALLY CORRESPONDED WITH TASER INTERNATIONAL AND

9

LOOKED AT THE ARTICLES THAT SHE WAS REFERRED TO.

10

SHE FOUND OUT AS MUCH AS

SHE

AND SHE CONCLUDED THAT THE REPEATED TASER

11

DISCHARGES ON A PERSON WHO IS IN AN AGITATED STATE

12

ON METHAMPHETAMINE CAUSED THIS DEATH.

13

SHE LOOKED AT THE TOXICOLOGY REPORTS,

14

WHICH ARE THE LEVELS OF FOREIGN CHEMICALS IN THE

15

BODY.

16

.01, SO .08 IS THE LEGAL LIMIT FOR DRIVING.

17

ALMOST NOTHING.

18

LITER, .64 METHAMPHETAMINE IN HIS SYSTEM AND THAT

19

WHAT APPEARS TO BE RESPONSIBLE FOR THIS ERRATIC

20

BIZARRE BEHAVIOR THAT BROUGHT THE POLICE THERE.

21

HE HAD JUST A TRACE OF ALCOHOL, WHICH IS
SO

HE DID HAVE .64 MILLILITERS PER

NOW, AS I MENTIONED TO YOU BEFORE,

22

DR. MEYERS, THE PLAINTIFF'S CARDIOLOGY EXPERT, WILL

23

EXPLAIN TO YOU WHY IT WAS THE REPEATED TASER

24

APPLICATIONS THAT CAUSED THIS CARDIAC ARREST,

25

THROUGH THE METABOLIC CHANGES, THROUGH THE CHANGES
172

U.S. COURT REPORTERS

1

IN THE BLOOD ACID THAT WERE CAUSED BY THE REPEATED

2

MUSCLE CONTRACTIONS.

3

YOU WILL HEAR THAT DR. MEYERS BASES HIS

4

CONCLUSIONS ON DR. JAUCHIM'S STUDY FOR THE U.S.

5

MILITARY AND WHAT IT SHOWS ABOUT PH CHANGES CAUSED

6

BY THE REPEATED TASER APPLICATIONS, WHICH IS JUST

7

REALLY COMMON SENSE.

8
9

THROUGHOUT THE TRIAL YOU WILL HEAR SOME
ALTERNATIVE HYPOTHESES AND ALTERNATIVE THEORIES,

10

ALTERNATIVE SUGGESTIONS AS TO WHAT CAUSED THIS

11

CARDIAC ARREST.

12

NONE OF THEM APPLIED TO THIS CASE.

13

DR. MEYERS WILL EXPLAIN TO YOU WHY

THE FIRST IS THAT THERE WAS SOME

14

PREEXISTING HEART CONDITION THAT WAS DISCOVERED IN

15

MR. HESTON DURING THE AUTOPSY.

16

ENLARGED HEART.

17

REMEMBER, TASER'S CARDIOLOGISTS, AGREED THAT THIS

18

IS NOT AN UNUSUAL CONDITION FOR A 40-YEAR OLD

19

AMERICAN, AND THAT IT IN NO WAY EXPLAINS THIS

20

DEATH.

21

HE HAD A MILDLY

DR. MEYERS AND DR. LUCERI,

IN FACT, DR. LUCERI, AND THIS IS TASER'S

22

EXPERT, SAID THAT ATTRIBUTING THIS DEATH, THIS

23

CARDIAC ARREST TO THE ENLARGED HEART IS, AND I

24

QUOTE, "NONSENSE."

25

THE SECOND IS THAT MR. HESTON DIED OF A
173

U.S. COURT REPORTERS

1

METHAMPHETAMINE OVERDOSE; HE JUST TOOK TOO MUCH

2

METHAMPHETAMINE AND THAT STOPPED HIS HEART.

3

CAN HAPPEN; HOWEVER, AS BOTH DR. MEYERS AND

4

DR. LUCERI, TASER'S EXPERT, WILL EXPLAIN TO YOU,

5

WHEN THAT HAPPENS THERE'S A DIFFERENT MECHANISM,

6

THERE'S A DIFFERENT KIND OF HEART ARRYTHMIA THAN

7

WHAT WAS PRESENT IN THIS CASE.

8
9

THAT

AND I'LL WAIT UNTIL THE DOCTORS ARE UP
THERE SO I DON'T MESS UP, BUT IT'S LIKE THE

10

DIFFERENCE BETWEEN VENTRICULAR FIBRILLATION AND

11

ASYSTOLE, WHICH COMES OUT AS COMPLETELY DIFFERENT

12

KINDS OF LINES ON THOSE GRAPH PAPERS THEY HOOK UP

13

TO PEOPLE'S HEARTS TO SEE HOW THEY'RE BEATING.

14

THE THIRD HYPOTHESIS IS THAT MR. HESTON

15

DIED FROM SOMETHING THAT THE DEFENSE EXPERT IS LIKE

16

TO CALL EXCITED DELIRIUM SYNDROME; THAT HE

17

BASICALLY EXERCISED HIMSELF TO DEATH BECAUSE OF THE

18

EFFECTS OF THE METHAMPHETAMINE.

19

NOW, THIS IS A VERY CONTROVERSIAL AND NEW

20

THEORY ABOUT CAUSE OF DEATH.

21

TOO FAR INTO IT NOW, BUT IT'S WHAT IS CALLED A

22

DIAGNOSIS OF EXCLUSION.

23

I DON'T WANT TO GO

IN OTHER WORDS, ONE CAN ATTRIBUTE DEATH

24

TO EXCITED DELIRIUM SYNDROME, ACCORDING TO CERTAIN

25

PROPONENTS OF THE THEORY, ONLY WHEN THERE ARE NO
174

U.S. COURT REPORTERS

1
2

ALTERNATIVE EXPLANATIONS.
FOR EXAMPLE, IF YOU HAVE SOMEBODY WHO IS

3

IN AN EXCITED AND AGITATED STATE AND HAVE SOME

4

METHAMPHETAMINE IN THEIR SYSTEM, AND THEY'RE DEAD,

5

AND THEY HAVE A BULLET WOUND IN THEIR HEAD, YOU

6

DON'T SAY THAT THAT'S EXCITED DELIRIUM SYNDROME.

7

SIMILARLY, IF SOMEBODY HAS BEEN TASED 25

8

TIMES AND IS SEVERELY ACIDOTIC AND GOES INTO

9

CARDIAC ARREST, YOU DON'T SAY THAT THAT IS EXCITED

10

DELIRIUM SYNDROME.

11

OTHER EXPLANATION.

12

IT'S ONLY WHEN THERE IS NO

MR. AND MRS. HESTON ARE SUING TASER

13

INTERNATIONAL BECAUSE THEY DIDN'T DO THEIR RESEARCH

14

BEFORE THEY MARKETED THEIR PRODUCT AND THEN EVEN

15

AFTER THEY FOUND OUT, THEY DIDN'T DO WHAT THEY WERE

16

SUPPOSED TO DO TO MAKE SURE THE WARNING GOT OUT.

17

THEY'RE SUING THE POLICE OFFICERS BECAUSE

18

THEY SHOULD NOT HAVE TASED MR. HESTON AFTER HE WAS

19

KNOCKED TO THE FLOOR.

20

THE PLAINTIFFS WILL BRING IN AN EXPERT TO

21

EXPLAIN THAT TO YOU.

HIS NAME IS ERNEST BURWELL.

22

HE TRAINED, BEFORE HIS RETIREMENT, LOS ANGELES

23

COUNTY SHERIFF'S DEPUTIES IN THE USE OF THE TASER

24

DURING SORT OF THE FIRST FOUR YEARS OF THE

25

IMPLEMENTATION OF THIS STILL RELATIVELY NEW DEVICE.
175

U.S. COURT REPORTERS

1

AND MR. BURWELL WILL TELL YOU -- BUT,

2

AGAIN, IT'S JUST COMMON SENSE -- THAT ONCE THE

3

PERSON IS KNOCKED TO THE GROUND AND THE DEVICE HAS

4

DONE ITS JOB OF ALLOWING A SAFE TAKE-DOWN FROM A

5

DISTANCE, THE OTHER OFFICER IS PRESENT, AND THERE

6

WERE OTHER OFFICERS PRESENT IN THIS CASE, SHOULD

7

MOVE IN AND HANDCUFF THE PERSON, QUICKLY AND

8

SAFELY; THAT CONTINUING TO SHOCK THE PERSON ONCE

9

HE'S DOWN IS ACTUALLY COUNTERPRODUCTIVE BECAUSE --

10

BECAUSE IT MAKES THE MUSCLES RIGID AND MUCH MORE

11

DIFFICULT TO PLACE BEHIND THE BACK INTO HANDCUFFING

12

POSITION.

13

BEING SHOCKED WITH A TASER, YOU'LL HEAR,

14

IS EXTREMELY PAINFUL.

15

SO ANY INDIVIDUAL UNNECESSARY CYCLING OF A TASER,

16

IF IT IS UNNECESSARY FOR A LAW ENFORCEMENT

17

OBJECTIVE OR A PUBLIC SAFETY OBJECTIVE, IT IS

18

EXCESSIVE FORCE.

19

IT IS A USE OF FORCE.

NOW, DURING THE TRIAL THE DEFENDANTS WILL

20

CLAIM THAT THEY DID NOT KNOW THAT THESE EXTRA

21

CYCLES WILL KILL ANYBODY.

22

DOESN'T MATTER.

23

AND

MAYBE THAT'S TRUE.

IT

THE LAW HOLDS PEOPLE RESPONSIBLE FOR THE

24

CONSEQUENCES OF EXCESSIVE FORCE, WHETHER THEY

25

INTENDED IT TO BE DEADLY OR NOT.
176

U.S. COURT REPORTERS

1

MR. HURLEY:

2

THE COURT:

OBJECTION.

LEGAL ARGUMENT.

YES, MEMBERS OF THE JURY, I

3

ALLOW THIS TIME FOR THE PARTIES TO TALK ABOUT WHAT

4

THE EVIDENCE WILL SHOW, AND I WILL INSTRUCT YOU ON

5

THE LAW AND I'LL ASK YOU TO CONFINE YOUR COMMENTS

6

TO WHAT YOU BELIEVE THE EVIDENCE WILL SHOW AND WAIT

7

UNTIL LATER TO MAKE ARGUMENT ABOUT THE LAW.

8

MR. BURTON:

THANK YOU, YOUR HONOR.

9

SERGEANT DOMINICI DID NOT USE HIS TASER

10

AFTER MR. HESTON WAS ON THE LIVING ROOM FLOOR.

11

HE'S NOT RESPONSIBLE IN THE SAME WAY; HOWEVER, HE

12

WAS IN CHARGE OF THIS OPERATION AND YOU WILL HEAR

13

FROM A SECOND EXPERT IN POLICE PRACTICES FROM

14

PLAINTIFF, A RETIRED LIEUTENANT FROM THE LOS

15

ANGELES COUNTY SHERIFF'S DEPARTMENT NAMED ROGER

16

CLARK, WHO ONCE LEAD A VERY ELITE UNIT WHICH

17

ARRESTED DANGEROUS CRIMINALS.

18

AND LIEUTENANT CLARK WILL EXPLAIN TO YOU

19

HOW IMPORTANT IT IS FOR THE COMMANDER IN A TACTICAL

20

SITUATION TO EXERCISE CONTROL TO MAKE SURE THAT

21

EACH OF HIS SUBORDINATES UNDERSTAND WHAT HIS ROLE

22

IS TO BE OR WHAT HER ROLE IS TO BE AND TO EXECUTE

23

THAT PLAN AND TO STOP SUBORDINATES IF THEY BEGIN

24

DOING THINGS THAT ARE COUNTERPRODUCTIVE, SUCH AS

25

USING EXCESSIVE TASER SHOCKS.
177

U.S. COURT REPORTERS

1

FINALLY, PLAINTIFFS ARE ASKING THAT THE

2

CITY OF SALINAS POLICE DEPARTMENT BE HELD

3

RESPONSIBLE BECAUSE IT CHOSE NOT TO BUY THE

4

SOFTWARE, $150, TO DOWNLOAD THE DATAPORT DATA.

5

PRIOR TO THIS INCIDENT THE CITY OF

6

SALINAS POLICE DEPARTMENT, YOU'LL SEE FROM THE

7

EVIDENCE, DID NOT CHECK THE TASERS OF OFFICERS

8

AFTER AN INCIDENT TO FIND OUT HOW MANY TIMES THE

9

DEVICE HAD BEEN FIRED TO SEE WHETHER OR NOT WHAT

10

THE OFFICERS REPORTED ACTUALLY MATCHED WHAT

11

HAPPENS.

12

IN THIS CASE THEY HAD TO GO GET THE

13

SOFTWARE BECAUSE NOW THEY HAD A DEATH ON THEIR

14

HANDS AND THEY FOUND THAT THE OFFICERS REPORTED FAR

15

FEWER TRIGGER PULLS THAN THE DATAPORT RECOVERED.

16

HAD THEY GOTTEN THIS $150 SOFTWARE WITH

17

THEIR ORIGINAL ORDER, SET THE CLOCKS ON THE

18

DATAPORTS CORRECTLY AND MONITORED OFFICERS AFTER

19

THEY USED IT, IT WOULD HAVE BEEN AWARE OF THE

20

PROBLEM WITH THE EXCESSIVE TRIGGER PULLS AND BEEN

21

ABLE TO CORRECT FOR IT.

22

THE EVIDENCE WILL ALSO SHOW THAT THE CITY

23

OF SALINAS DID NOT REVIEW THE TASER TRAINING THAT

24

WAS DISSEMINATED TO THEM WITH THE WARNING OF THE

25

EXTENDED DURATIONS.
178

U.S. COURT REPORTERS

1

LET ME JUST CONCLUDE BY TELLING YOU ABOUT

2

THE DECEDENT IN THIS CASE, ROBERT HESTON.

3

UP IN SALINAS.

4

ALMOST.

5

HIGH SCHOOL AND WON AN AWARD AS THE MOST

6

OUTSTANDING FOOTBALL PLAYER IN THE CITY.

HE GREW

HE LIVED THERE HIS ENTIRE LIFE

HE ACTUALLY WAS AN OUTSTANDING ATHLETE IN

7

HE WENT TO FRESNO STATE TO PURSUE

8

FOOTBALL BUT COLLEGE DIDN'T AGREE WITH HIM.

9

LEFT SCHOOL AND WENT TO WORK AT HIS FATHER'S CEMENT

10
11

HE

BUSINESS.
BY THE TIME HE WAS IN HIS MID TWENTIES,

12

HIS FAMILY BECAME AWARE THAT HE HAD THIS SEVERE

13

SUBSTANCE ABUSE PROBLEM AND THERE WAS A FAMILY

14

HISTORY OF SUBSTANCE ABUSE.

15

BY ALL ACCOUNTS THAT YOU'LL HEAR, THERE

16

WERE TWO ROBERT HESTONS.

WHEN HE WAS CLEAN AND

17

SOBER, AS HE WAS FOR MANY SIGNIFICANT STRETCHES, HE

18

WENT THROUGH REHABILITATION MANY TIMES, HE WAS THE

19

WORLD'S NICEST GUY.

20

HIS FATHER WILL TELL YOU HOW THEY LOVED

21

TO FISH TOGETHER, WORK SIDE-BY-SIDE IN THE CEMENT

22

BUSINESS, GO TO CHURCH ON SUNDAYS AND THEN THE

23

MEN'S BREAKFAST AFTERWARDS.

24
25

IT JUST -- FRIENDS LOVED HIM.

HE WAS THE

KIND OF GUY THAT WOULD GIVE YOU THE SHIRT OFF OF
179

U.S. COURT REPORTERS

1

HIS BACK.

2

AND THEN HE WOULD GET INVOLVED WITH THIS

3

DRUG AND YOU'LL HEAR ABOUT -- ABOUT ALL OF THE

4

STRUGGLES THAT THE FAMILY HAD WITH THAT.

5

THIS WAS NOT THE FIRST TIME THAT THIS

6

HAPPENED.

THERE WAS AN INCIDENT AT A HOTEL.

7

WAS AN INCIDENT WHERE HE WAS BITTEN BY A POLICE

8

DOG.

9

WAS ANOTHER INCIDENT WHERE HE WAS ACTUALLY THROWING

HE WAS ACTUALLY TASED ANOTHER TIME.

THERE

THERE

10

STUFF OUT OF HIS PARENTS' HOUSE.

11

INCIDENT WHERE HE GOT INTO A PHYSICAL ALTERCATION

12

WITH HIS MOTHER WHERE SHE KICKED HIM IN THE GROIN

13

AND WHERE HE RETALIATED AGAINST HER AND PUNCHED HER

14

AND GAVE HER A BLACK EYE.

15

THERE WAS EVEN AN

BUT YOU WILL ALSO HEAR THE POSITIVE TIMES

16

HE HAD WITH HIS FAMILY, THE TIME WITH HIS NIECES

17

AND THE PIE BAKING CONTEST WITH HIS FATHER, THE

18

HOLIDAYS, THE FACT THAT THE FAMILY NEVER EVER GAVE

19

UP ON HIM AND HE NEVER GAVE UP.

20

STRUGGLING TO FIND THE PATH TO SOBRIETY.

21

HE WAS STILL

HE WAS A VERY RELIGIOUS PERSON.

HE WENT

22

12-STEP PROGRAMS AND SO ONE OF OUR LAST WITNESSES

23

NEXT WEEK WILL BE A DOCTOR NAMED NATHAN LAVID.

24

NATHAN LAVID IS A PSYCHIATRIST AND HE TREATED

25

SPECIAL ADDICTIONS.

AND

180

U.S. COURT REPORTERS

1

AND HE DID A PSYCHIATRIC AUTOPSY OF

2

ROBERT HESTON WHERE HE TALKED TO THE FAMILY AND

3

REVIEWED MEDICAL RECORDS, AND HE'LL EXPLAIN TO YOU

4

WHY ROBERT HESTON WAS A GOOD CANDIDATE FOR ULTIMATE

5

RECOVERY.

6

THERE ARE SOME PEOPLE WHO ARE HOPELESS.

7

THERE ARE OTHER PEOPLE WHO TRY AND TRY AND TRY OVER

8

AND OVER AGAIN TO DEFEAT THIS THING AND HE WAS IN

9

THAT SECOND CATEGORY WITH THE MATURITY OF AGE, WITH

10

THE SUPPORT OF HIS FAMILY, WITH THE RIGHT SORTS OF

11

INTERVENTION FROM HIS CHURCH, FROM 12-STEP

12

PROGRAMS, WITH MEDICAL AND -- AND INTERVENTION THAT

13

IS -- THAT IS BECOMING MORE AND MORE COMMONPLACE,

14

ROBERT HESTON MAY WELL HAVE REALIZED REDEMPTION AS

15

MANY DO, BUT THAT'S NOT GOING TO HAPPEN BECAUSE HE

16

PASSED AWAY.

17

BE ASKING YOU TO AWARD AN APPROPRIATE AMOUNT OF

18

MONEY DAMAGES.

19
20

AND SO AT THE END OF THE CASE WE'LL

THANK YOU VERY MUCH.

THANK YOU, YOUR

HONOR.

21
22
23
24
25
181

U.S. COURT REPORTERS