8-figure verdict

93 – Hans Poppe – David vs. Goliath: Winning the Uphill Battle

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Kentucky-based trial attorney, Hans Poppe, to discuss his recent cases, the difficulty of trying med mal cases, and much more.

The episode begins with Hans going into his history as a trial lawyer. Hans began his practice in Louisville, Kentucky, and currently runs a small, 100% referral-based firm, focusing on catastrophic injury cases. He goes on to explain that he started his firm 4 years out of law school and gradually built his practice through the years by focusing on case selection and making sure everybody knew what he was interested in by utilizing marketing methods such as CLEs to maintain relationships and monthly newsletters.

Following a brief discussion on CLEs, Michael inquires on Hans’ trial record on med mal cases, to which Hans responds, “We’ve won 3 of the last 4 med mal trials, [and have] gotten punitive damages in all 3 of [those wins].” He goes on to say that he’s been focused on trying these cases differently.

To this, Michael asks Hans to explain more about his recent wins, adding that med mal cases are tough for plaintiff attorneys. Hans agrees and adds, in Kentucky, the defense win-rate is 80-90%, and how there’s a very small group of attorneys in the state who take these cases to verdict. He goes on to say even the top lawyers who are doing very well are still losing 80% of the time.

“You’ve got to be able to put $100,000 on the line and know there’s an 80% chance that you’re going to lose it.” – Hans Poppe

Continuing the discussion of the difficulty and uphill battle of med mal cases, Hans expresses the importance of being “hyper-focused” on case selection and realizing “every case is actually 3 cases,” (meaning the case you sign up on day one, the case you prepare for, and the case you try; none of which are the same) and how those factors need to be top of mind during case selection.

Building on the topic of trying med mal cases, Hans goes on to explain if you go into the courtroom and try against a physician just based on medicine, you’re going to lose. He outlines how defense lawyers who handle med mal cases are very good lawyers and work those cases hard, and how you need to “find something else” to bring to the table.

“If you can get past the medicine… and find [focus in on] the other angle… the other side is not used to that.” – Hans Poppe

To explain the concept of “getting past the medicine,” Hans goes into detail on his most recent case involving the suicide death of his client. He shares why it was an impossible case, considering his client committed suicide, but he chose to frame the case so it started before the suicide. He describes the business practice of this particular pain management clinic and the unavoidable outcome it produced of patients not receiving the care they need. This was due to patients only seeing doctors on their first visits and mid-level providers in subsequent visits.

In this case, the prescription given to his client was written 4 days before he’d even seen the provider and was for half of his normal dose. “What we focused on were the business decisions that were being made,” Hans says before delving deeper into the unethical business practices of this clinic. This case ultimately resulted in a $7 million verdict and was a zero-offer case, which Hans adds, “the defense had no idea.”

There were 15 doctors, and the doctors aren’t seeing the patients… each doctor has 4-5 nurses under him, they see a patient every 15 minutes, and so the doctor bills 4-5 doctor’s visits every 15 minutes.” – Hans Poppe

Following this discussion, Michael and Hans go into another of his recent wins, a $21.3 million verdict case involving an unnecessary pacemaker. In this case, Hans and his team focused on the business practices of the hospital, and how it entangled with cardiologists and encouraged them to perform heart procedures; essentially disincentivizing proper care in favor of profit-focused business practices. “You know what the problem is with incentives?” Hans says, “They work.”

He and Michael continue the topic by delving into the ugly side of the medical business, and how it really changes the dynamic of a case when you can focus jury’s attention on something other than “the white coat and the stethoscope,” before moving on to Hans’ 3rd recent case.

In this case, the audit trail (document that hospitals and physician’s offices are required to maintain, tracks every time the chart is logged into, and if any edits are made) revealed several days after the patient died, the PA got into the patient’s chart and modified the history. The PA had no idea during his deposition that Hans had the audit trail, and not only that, but Hans never asked him about it … UNTIL TRIAL!

“We’re not trying a case about what happened  the exam room … we’re trying a case on what business decisions were made and how those impact patient care [and leads to] a bad outcome.” – Hans Poppe

During trial, the PA had no explanation as to why he was changing the patient chart several days later. Hans had also obtained evidence the PA had a productivity bonus and had been running behind on the day his client was seen; a fact Hans argued was the reason he didn’t do a physical examination of the patient.

This episode also covers the willingness to risk losing and why the ability to recover is so important, the impact of your mindset, appearance, and self-confidence, how incentives can go bad and how to highlight it in your case.

 

Guest Bio

Hans is licensed in Kentucky and Indiana; however, he has a national reputation for handling catastrophic injury and death cases as well as contingency fee business-to-business litigation.

While lots of lawyers hold themselves out as “trial lawyers,” Hans actually is one.  According to the 2020 Kentucky Trial Court Year in Review, only three plaintiff lawyers in Kentucky have tried more cases to verdict than Hans since 2005.

In fact, since 1998, only four lawyers in Kentucky have more verdicts over one million dollars than Hans (2020 Kentucky Trial Court Year in Review.) Hans had the largest Kentucky verdict in 2016 and the second largest Kentucky verdict in 2008. Hans has multiple seven and eight figure verdicts and settlements in medical malpractice, insurance bad faith, and FELA cases.

In 2016, ALM VerdictSearch Top 100 Verdicts of 2016 recognized Hans’ $21,274,786 verdict in Wells v Catholic Health Initiatives, Inc as the 94th largest verdict in the United States.  The Wells case was one of over 400 cased filed by the Poppe Law Firm in London, KY alleging unnecessary cardiac procedures were performed in order to boost profits.  Three more cases went to trial and ultimately all the cases were globally settled the night before the verdict in the Owens v. CHI trial.  The work done by Hans and his team also contributed to a $16,500,000 Medicare qui tam recovery from the hospital and $380,000 from two doctors.  Additionally, the work done by the Poppe Law Firm helped lead to the arrest and federal conviction of two other cardiologists for Medicare fraud.  One was sentenced to 42 months and the other was sentenced to 30 months.

At the same time he was handling the London unnecessary procedure litigation, Hans and his team found a similar fact pattern in Ashland, KY involving King’s Daughter’s hospital.  Hans filed over 500 lawsuits in Ashland also alleging unnecessary cardiac procedures. Two months later the Department of Justice reached a $41,000,000 settlement with King’s Daughers for allegations of unnecessary procedures. The civil suits were settled in a 2019 confidential global settlement.  The work done by Hans and his team also helped lead to the conviction of a third cardiologist who was sentenced to 5 years and $1,000,000 in restitution.

Hans was selected by his peers as the 2020 Lawyer of the Year in Medical Malpractice-Louisville by Best Lawyers®. Only a single lawyer in a specific practice area and location is honored with a “Lawyer of the Year” designation. Additionally, Hans was recognized in the same edition of The Best Lawyers in America for his work in Personal Injury Litigation and Professional Malpractice Law.

Hans was named a 2021 Top 50 Kentucky Super Lawyer by the prestigious Thomson-Reuters Super Lawyer peer review rating system.

Also in 2020, Hans was nominated and elected by his legal peers to be President of the prestigious American Board of Trial Advocates’ Kentucky Chapter.

Hans’ advocacy and professionalism recently led the U.S News & World Report to recognize The Poppe Law Firm as a 2021 Best Law Firms in Kentucky-First Tier Law Firm.

In addition to being a courtroom trial lawyer, Hans has had five cases go before the Supreme Court of Kentucky.

Contact Hans:

E-mail:  hans@poppelawfirm.com
Phone: 502-895-3400
Website: www.poppelawfirm.com

91 – Sara Williams – Beyond Discomfort: Pushing Through & Seizing Opportunities

In this episode of the Trial Lawyer Nation podcast, Michael sits down with award-winning trial attorney, professor, and trial coach, Sara Williams, to discuss Sara’s history and transition into plaintiff law, the importance of pushing through discomfort, her recent monster case, and much more.

The episode begins with Sara talking about her “army brat” upbringing, including living in various places such as Germany and Holland, before attending law school in Birmingham, Alabama at Cumberland School of Law. She practiced insurance defense for the first 7 years of her career (including a trucking defense practice) until she “could not do it anymore,” resulting in her move to plaintiff law with Alexander Shunnarah Trial Attorneys.

Michael then inquires further about what made Sara want to be a plaintiff lawyer. To this, Sara responds, “When I was in law school I wanted to be a plaintiff’s lawyer, but, at that time, plaintiff firms in our market weren’t really hiring directly out of law school.” Sara then goes into the story of her last big case as a defense lawyer, a wrongful death case involving the drowning of a 9-year-old. Less than a year after winning the case, she would leave defense law.

It didn’t sit well with me… it was the first time I ever won a trial, went home and did not celebrate it.” – Sara Williams

After discussing Michael’s disbelief at Sara labeling herself an introvert, the conversation shifts to the differences between what is needed to be a successful plaintiff lawyer as opposed to a defense lawyer. “What I do now is so much harder,” Sara responds, before referencing the view on the defense side in retrospect, “[…] the bar was not as high, I feel, now that I’ve done it on both sides.” She goes on to say that she’s done so much more to develop and hone her skills as a plaintiff lawyer than she ever did as a defense attorney.

The two then go into several of the methods Sara has found the most useful to develop her trial skills, which include:

“When we’re in the right state of mind … that’s when we can really tap into the emotions, the empathy, the vulnerability, and best communicate that to a jury.” – Sara Williams

The conversation then shifts to Sara’s work as a professor and trial coach with Trial Advocacy. She explains her love for teaching students, especially those like her when she was starting out: quiet, shy, and introverted. “When they realize and cross over from good to great, and they own themselves, and they’re just being who they are; that really motives me.” She goes on to say that coaching also keeps her skills sharp when she’s not in trial herself.

After covering topics ranging from Sara’s partnership with Alexander Shunnarah, to the importance of making connections at conferences and really utilizing your time in those environments, the topic shifts to Sara’s recent $12 million verdict.

Sara then outlines the details of the case, in which a bus driver in Birmingham, AL fainted while driving, causing the bus to turn over and fall into a ravine. She goes on to talk about the primary plaintiff, a woman whose injuries resulted in the amputation of her leg above the knee, and how she tried to gain control of the bus after noticing the driver had fainted, which ultimately resulted in the handicap ramp falling onto her leg when the bus turned over. This woman was one of 17 plaintiffs in the case.

“When [our primary plaintiff] limped up, I will never forget it, there were people in our panel laughing at her […] we knew we had an uphill battle in terms of developing the emotion of the case.”– Sara Williams

Sara continues by discussing the facts of the case, including the drivers history with fainting spells, and what they did to get the jury mad at the defense. “We knew [from] depositions that they had no system for tracking prior medical conditions of their drivers … since that time, they had NOT developed any!” Sara admits she assumed they had not implemented this system, noting that though she was taught to never ask a question if you don’t know the answer, her intuition led her to ask. Sara believes this was a pivotal turning point for the jury in the case.

“I don’t know what it is,” Michael says in agreeance with Sara’s decision to follow her intuition, “I don’t know if it’s God or magic – but you get in a space when you’re in the moment at trial, and you feel it … 9 times out of 10, you get gold when you do it.”

The episode concludes with the pair discussing what’s next for Sara. She explains that she’s at a point in her life where she’s focused on her legacy and the impression she’s going to leave on the world besides the number of cases tried. She goes on to discuss the challenges that women in the legal industry face and how she aims to be a mentor and inspiration for them to seize the opportunities they’re given without fear.

This episode also covers taking care of yourself and maintaining a healthy mindset, being a confident leader in the courtroom, Sara’s inspirational social media presence, and how the loss of connection in the digital age can affect us in the courtroom.

Guest Bio

Sara Williams currently practices at Alexander Shunnarah Trial Attorneys headquartered in Birmingham, Alabama, where she handles primarily trucking litigation and wrongful death litigation. Sara has collected over $30 million in verdicts and settlements on behalf of her clients, including a $12 million dollar verdict against the Birmingham Max Bus system in 2017.

In 2017 at the age of 37 Sara took over as managing attorney of the firm. During her tenure the firm more than doubled in size. Alexander Shunnarah Trial Attorneys now has offices in 9 states. In 2021 Sara made the decision to step away from the managing role to focus on her campaign to increase the visibility of women trial lawyers and return to litigation.

Sara is an adjunct professor of Trial Advocacy at Cumberland School of Law where she teaches Advanced Skills in Trial Advocacy-Civil and Depositions and Technology. She also serves as a coach for Cumberland School of Law’s nationally ranked mock trial teams. She is a 2003 graduate of Florida State University and a 2006 graduate of Cumberland School of Law.

Contact Sara:
E-mail: swilliams@asilpc.com
Phone: 205-983-8140
Website: www.sarawilliamsesq.com

89 – Michael M. Guerra – From Guts to Glory

In this episode of the Trial Lawyer Nation podcast, Michael Cowen sits down with McAllen, TX trial attorney, Michael M. Guerra, to discuss his multiple 7 and 8-figure verdicts & settlements, recent “monster” settlement in a “legally tough case,” and advice on how to achieve verdicts like these in your cases.

Cowen and Guerra begin the episode by discussing Guerra’s background and how he got into doing plaintiff’s work. Guerra begins by explaining that he had an Allstate defense firm job waiting for him after law school and was “quickly terminated,” citing that his heart was not in it. Seeing as he was married right before starting law school, had a baby on the way and a mortgage to pay, he quickly took a job as a court-appointed lawyer; a position leading him to over 100 jury verdicts.

In 1995, Guerra was appointed Guardian Ad Litem in a death case in Plainview, TX, where he would meet Mikal Watts. This meeting would ultimately lead to Guerra opening Watts’s McAllen office, where we would work alongside Watts before going off on his own.

“Pushing trials and then just going in there and watching good defense lawyers do what they did. I learned a lot [from them].” – Michael M. Guerra

Guerra then goes into a harrowing story of a case he took on just after going off on his own; a case involving the death of his friend’s father, a high-ranking Sergeant Major in the Army who was killed after his RV exploded when he lit his morning cigarette. The explosion was due to a gas leak in the RV trailer.

Guerra began the case by enlisting the help of several experts; namely Mike Schultz (Illinois) to look at the trailer and Tim Dunn (Georgia) to investigate the gas system. Shortly after beginning the case, a call from a Sheriff’s deputy would change everything for Mike. “He [said], ‘Hey, Guerra, I’ve got to tell you. When we got into the trailer…we found the [gas] burner in the ON position.’” Understanding that the Sergeant Major had most likely left the stove on by accident, Mike’s original thought of a defect or leak causing the explosion was called into question. He couldn’t believe it.

Continuing past this unfortunate revelation, Mike began researching the trailer and oven manufacturers and came upon an interesting, and ultimately crucial, piece of information: the company sold the exact same trailer in Australia with one key difference, their stoves contained a “flame failure device.” This device, which automatically shuts off the gas once the flame goes out, was absent from American models of this trailer; a safety feature that would’ve cost the company only 99 cents per burner to install.

That case consumed me for 10 months, [as] we got it set for trial.” – Michael M. Guerra

The case was settled a week into trial for an amazing result and, more importantly, saw the trailer manufacturer agree to include the “flame failure device” safety feature in all future models.

The two then move on to discussing Guerra’s latest case out of the Port of Brownsville; a case involving “ship breaking,” the process of dismantling a ship to reuse parts or extract materials, a flash fire, and 2 men who suffered significant burns (one who was burned on over 80% of his body and passed away).

After discussing details of the case including the ship owner filing a Limitation of Liability Act, getting removed to federal court, and then returning to state court, the two begin to discuss Guerra’s invaluable 2-day, 36-person mock trial, which gave him the confidence to ask for huge numbers ($250-$300 million) in voir dire; a task that, Guerra confessed, scared him.

“It took a lot, for me personally, to [ask] for that kind of money; knowing people would throw hand grenades at me.” – Michael M. Guerra

When everything was said and done, calmed and confident from his meditations, prayers, and with some last-minute motivation from a Nick Rowley CD in his car on the morning of trial, Guerra couldn’t wait to get started. The jury was selected on Friday, presenting evidence was scheduled to begin on Monday, yet they would not have a chance to begin, as the case was settled on Saturday evening.

Cowen then shifts the conversation to what Guerra did to pressure the defense in the case. Guerra responds, “most jurisdictions from coast to coast have laws that create a duty for insurance carriers to use good faith when settling cases. In Texas, we call it the Stower’s Doctrine, which says that if an insurance company refuses to settle a case, that reasonably should have been settled within policy limits, the insurer can sue that carrier and they can be on the hook for the entire amount of verdict even above their policy limits.”

“It’s an everchanging, very dynamic area of law, in my opinion” – Michael M. Guerra

Guerra closes the discussion by talking about how he hired several different policy lawyers, including coverage lawyers specializing in reading insurance contracts, to help draft a demand to the carrier. “That really paid off in the end,” he says as he reflects on the impact of hiring those lawyers, including a quick note on the defense commenting on how expertly done the demands had been.

This podcast episode also covers the importance of working with and learning from great lawyers, advice for handling “monster” cases, why you should give your cell phone number to everyone, and much more.

Guest Bio

Michael M. Guerra was born and raised in McAllen, Texas. He received a Bachelor of Science degree from Texas A&M University in College Station and a law degree from Texas Southern University in Houston. While at A&M, he was a member of the Corps of Cadets. In law school, Mr. Guerra was an American Jurisprudence Award recipient in Constitutional law. Mr. Guerra has been licensed to practice law since 1993. He is certified by the Texas Board of Legal Specialization in Personal Injury Trial Law and has served as a member of the Exam Commission. Mr. Guerra began his career by successfully trying dozens of criminal trials to jury verdict. He transitioned his practice to representing plaintiffs in civil litigation, including representing hundreds of landowners in an aquifer contamination case and representing the Plaintiffs in America’s first Ford Explorer – Firestone tire case to reach a jury. Since then, his efforts have been instrumental in compelling safety improvements in product manufacturing and premises management. Over his almost 30 year career, Mr. Guerra has generated hundreds of millions of dollars in recoveries for his deserving clients. His efforts have achieved astonishing results, including a $33 million injury verdict which was the record verdict in Texas for a case of its type, as well as multiple settlements of more than $20 million.

Mr. Guerra has been featured as a speaker in numerous civil litigation seminars and his articles have been featured in national publications. His cases have been profiled by, or he has been quoted by numerous major news organizations such as the New York Times, the Los Angeles Times, CNN, and Fox News.

Mr. Guerra is a fellow in the International Academy of Trial Lawyers and a member of the American Board of Trial Advocates (ABOTA,) as well as the Attorney Information Exchange Group (AIEG). He has been named Texas Monthly – Texas Super Lawyer in multiple and consecutive years and he was named to The National Trial Lawyers – Top 100 Trial lawyers. Mr. Guerra is on the Advisory Board of the Texas Agriculture Lifetime Leadership (TALL) program and is on the Advisory Board of the McAllen Pregnancy Center. He is also a member of the President’s Board of Visitors for the Cadet Corps at Texas A&M University. Mr. Guerra was selected as the 2018 Ronald D. Secrest Outstanding Trial Lawyer Award recipient by The Texas Bar Foundation. The award recognizes a trial lawyer who, in his or her practice, has demonstrated high ethical and moral standards and has demonstrated exceptional professional conduct, thus enhancing the image of the trial lawyer.

Michael Guerra is married to Mindy Guerra and has three children.

 

76 – Benedict Morelli – Never Deviate: Telling the Truth, Trusting Your Instincts & Taking Risks

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary trial lawyer Benedict Morelli. With several 8 and 9-figure verdicts under his belt from a wide range of civil litigation areas, Ben’s track record as an attorney and advocate is known across the country, from suing Bill O’Reilly for sexual harassment and representing Tracy Morgan in his trucking case against Walmart. He and Michael discuss Ben’s story and path to success, a number of his high-profile cases, how he connects with the jury, and so much more.

Ben’s legal career started over four years before he passed his bar exam, while he was working at a law firm in an administrative role. There, he had the opportunity sit in on several jury trials and jury selections. Because of this, he had a head start in figuring out what strategies worked for him, namely authenticity in front of the jury. He continues to hone his craft today by researching other cases and their results. Interestingly, he doesn’t focus so much on the amount the jury awarded. Instead, he digs deeper into the facts of the case to analyze how great the verdict really was and encourages his team of young lawyers to do the same.

After Ben explains that he simply refuses to play by the insurance’s rules of offering about half of what you ask for, Michael digs deeper into where Ben gets his courtroom confidence from. Ben uses something he calls “Ben Morelli’s personal moot court” and seeks feedback from his friends and family. He also references Tracy Morgan’s trucking case against Walmart, eloquently stating “When I have a royal flush, I don’t play it as a pair of two’s.” If you have a strong case in a good venue, have the guts to stick to your number while also analyzing the risk vs. the reward.

Ben is now at the point in his career where his reputation precedes him, and he shares a SHOCKING story from his case against Live Nation where it worked to his advantage.

Michael then digs in to one of Ben’s biggest strengths, how skilled he is at connecting with the jury. His short answer is, “I am them. I’m exactly them.” He grew up like most of them, doesn’t talk down to them, and ALWAYS tells them the truth. He also NEVER uses jury consultants or a mock jury, which is in stark contrast with how many of our previous guests choose a jury. Instead, he goes into voir dire with no bag, paper, or even a pen and ALWAYS sticks to his theory. He insists that his own instincts and knowledge have served him better over the years, and that “When I bet on the jury, I win.” While a unique approach, this technique has served him so well that he’s been told my numerous judges that he won the case in jury selection. He concludes this topi by clarifying that the most important thing is that you stick to who you are, and find what techniques work for you instead of “drinking the Kool-Aid.”

Ben is also unique by today’s standards because instead of specializing his practice, he takes on a wide variety of cases in different practice areas. His philosophy on this is that if it’s a civil case, he can learn it. He also genuinely enjoys the challenge and takes a lot of pride in the diversity of his practice, something he urges other lawyers to consider before they specialize.

Michael then asks Ben how he motivates and educates his large team of young lawyers.  Ben describes his daily meetings with his lawyers and also with his staff. “I’m never too important,” he continues. Every attorney in the firm knows he will personally read every single thing they write. Michael agrees with this philosophy, and he and Ben discuss why it’s so imperative to stay involved in the litigation aspect of your firm, even after you’ve built up a great team.

The pair ends the episode by discussing two of Ben’s star-studded cases – Tracy Morgan’s trucking case against Walmart and suing Bill O’Reilly for sexual harassment. After sharing what it was like to represent a celebrity of Tracy Morgan’s caliber, he explains how suing Bill O’Reilly was one of the most nerve-wracking cases he’s ever had. They went after Ben, his wife, and his practice “with a vengeance.” The details of this story are shocking and Ben’s decision to stick with the case is truly inspiring.

This podcast also covers individual case lawyers vs. mass tort case lawyers, how Ben orders his witnesses (and why it’s SO important), how to internalize what your client’s been through, the power that plaintiff’s attorneys have, Ben’s record-breaking sexual harassment suit verdict, why Ben chose not to specialize his practice, and so much more. This episode is full of insightful and inspiring stories that are well worth the listen!

 

Guest Bio:

Benedict Morelli is one of the most successful plaintiff attorneys in the country, securing numerous multimillion-dollar results, including a $95M verdict in a sexual harassment case and a $102M verdict against Live Nation. He also helped negotiate a $265M settlement – the largest settlement for a passenger railroad accident in US history – for victims of the 2015 Amtrak train derailment. Mr. Morelli and his firm often litigate high-profile cases, including representing comedian Tracy Morgan in his lawsuit against Walmart and being one of the first to successfully sue Bill O’Reilly and Fox News for sexual harassment. He has deep experience in a variety of civil matters, including personal injury, truck and auto accidents, employment discrimination, medical malpractice, and product liability.

 

64 – Mark Mandell – The Case Framing Mindset

In this Trial Lawyer Nation podcast, Michael is joined by legendary trial lawyer and author Mark Mandell. Mark wrote the must-read books “Case Framing” and “Advanced Case Framing.” Michael and Mark take a detailed look inside these books, including what case framing is, how to apply case framing, what “I just can’t get over” issues are, using “echoes” in trial, Mark’s trial closing strategy, and the story of the hardest case Mark ever tried.

Michael begins the episode by asking Mark to describe what case framing is. Mark starts at the beginning and explains how when he first started practicing, plaintiff lawyers were basically in “the dark ages.” Mark began looking for new ways to try cases almost immediately, but found each method he tried had holes in it. Then about 15 years ago, he started to study decision science and put together the basis of case framing.

Mark insists case framing is not just a method. As another great lawyer stated and Mark has since adopted, “It’s more than a model. It’s a mindset.” Mark explains how case framing has become a part of him, and influences everything he does both pre-trial and in trial. When he was first asked to describe case framing in one sentence, Mark struggled initially but then settled on, “Every single thing you present at trial needs to be framed and sequenced in a way that focuses the attention of the jurors on the points YOU most want to make.” He goes on to describe how a case is decided by what it’s focused on, so why would you want to focus on anything else? As Mark astutely summarizes, “A case frame is the heart and soul of the case. It gives the case meaning.”

Mark continues with explaining how a case frame needs to have two qualities. It needs to relate to the facts of the case, and it needs to have universal application in our society. He shares the detailed example of how he first came to understand this from the OJ Simpson criminal trial. Mark lists off the issues of the case and explains how they aren’t case frames. After exhausting these, Mark explains how the case frame was actually wrongful accusation and elaborates on why that is such a powerful case frame to use because of both its power and universal applicability.

Michael then asks Mark to explain the next level of case framing, which Mark named “I just can’t get over” issues. Simply put, it’s an issue that if a jury can’t get over, it’s going to guide their verdict. These issues can come from an almost endless amount of places, but they need to embody that statement.

As a follow up Michael asks what every listener must be thinking, what are some examples of defense “I can’t get over” issues and what can plaintiff lawyers do to overcome them? Mark gives a laundry list of examples and directs listeners to his book “Advanced Case Framing” where he details 16 different ways to overcome them. He briefly explains how to overcome these issues by refuting them or by “substituting them” or “overcoming them” with more powerful issues.

Another aspect of case framing Mark discusses in his books is “echoes.” Marks insists this is actually one of the hardest concepts to understand. An echo needs to either support or defend an issue, or Mark says you shouldn’t use it. It can be a document, idea, exhibit, or many other things that cause a good issue to reverberate throughout the jury’s head throughout trial. Mark explains how people need echoes to fully understand something because nobody can pay attention indefinitely. He then provides several examples of echoes he used when trying a DRAM shop case which he says is the hardest case he’s ever tried. Through this example, he highlights the importance of ignoring chronology and starting the case at the #1 “good for you” issue in the case.

The conversation shifts to a discussion of Mark’s different closing strategies. The first of those is that he never discloses his overall case frame until closing. He has numerous reasons for doing this, including that you need to leave something new to tell the jury in closing – and since the jury always goes into closing arguments undecided on something, what could be better to present to them than your overall case frame? His other reasons include rebuttal rules and that your case frame can change during trial, based on how it unfolds.

Mark is also known for using questions in his closing arguments, which Michael asks Mark to explain. Mark offers a surprisingly simple answer – people don’t like being told what to do. Mark continues by explaining that when you tell the jury what to do, YOU become the issue. When jurors come up with the answer themselves, “They own that answer now.”  He believes this causes them to go into deliberation much stronger. Michael adds that trusting the jury is both the most liberating and terrifying thing, to which Mark agrees. But, it makes trial a lot more fun AND leads to better results.

Michael and Mark conclude the episode by taking a detailed look at the DRAM shop case which Mark insists is the most difficult case he’s ever tried. Mark walks listeners through the shocking details of the case and explains how he applied his methods throughout. After being told by countless lawyers to drop the case, Mark walked away with a $21.5 million verdict after interest. This story truly needs to be heard to be appreciated.

This podcast also covers Mark’s advice on one of Michael’s more challenging cases, using anchors in trial, secondary case frames, beginning every witness examination with an “I can’t get over” issue, and so much more.

If you’d like to learn more from Mark Mandell, visit his website and purchase his books “Case Framing” and “Advanced Case Framing” here.

 

Guest Bio:

Mark Mandell practices law at Mandell, Boisclair & Mandell, Ltd. in Providence, Rhode Island. He specializes in catastrophic personal injury, wrongful death, medical negligence, dram shop and products liability cases.  He is triple Board Certified, nationally.  His certifications are in the areas of Civil Trials, Civil Pretrial and Medical Negligence Litigation.  Mr. Mandell is currently listed in “The Best Lawyers in America.” He is a member of the Inner Circle of Advocates.  Mr. Mandell is a past president of American Association for Justice, Rhode Island Trial Lawyers Association, and The Rhode Island Bar Association.  He is the immediate past chair of the Board of Directors of the Roger Williams University School of Law. He has more million dollar verdicts and verdicts of over $10,000,000 than any other lawyer in Rhode Island history.  Mark has written two books “Case Framing” and “Advanced Case Framing”.  He has also published 24 articles in national and state trial law journals on a variety of subjects and has lectured in 48 states.

 

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