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Zachary Mandell
Zachary Mandell
Attorney • (401) 273-8330

Case Framing – What Are “I Just Can’t Get Over Issues?”

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I previously introduced Attorney Mark Mandell’s new book Case Framing, available from Trial Guides. Today I offer a second, and final, preview of the book’s content.

In Case Framing, Attorney Mandell works from the presumption that issues jury members “just can’t get over” ultimately lead to a case’s verdict. The book includes Mandell’s three-part method for achieving just verdicts for clients.

  1. The fundamental truth that defines the essence of your case
  2. The vital issues your jury won’t be able to get over
  3. How to echo those issues throughout trial to keep your jury focused

Below is an excerpt from the introduction to issues juries “just can’t get over.”

A medical negligence case I tried in July, 2010 involved multiple claims of wrongdoing against the defendant foot surgeon. They included the facts that:

  1. No up to date pre-op x-rays were obtained of the foot in question before the surgery. The last previous x-rays taken were 16 months old.
  2. The incision made at surgery was too short and also too low in the foot. This created difficulty in visualizing the operative field.
  3. The surgeon removed both sesamoids from underneath the right big toe without a good reason for doing so. As a result, post-operatively the plaintiff developed a cocked-up, claw toe among other foot problems.
  4. Informed consent and medical battery were also issues resolved by the jury in the patient’s favor.

A number of focus groups were convened pretrial. The focus group members were highly critical of the defendant surgeon’s choice not to order up to date pre-op x-rays. The defendant’s excuse was he had enough other evidence and that the x-rays would not have made any difference in his surgical plan.

During cross-examination at the very close of trial the defendant surgeon made several key admissions that, while they helped our liability proof in a number of ways, lessened our ability to prove that the lack of up to date pre-op x-rays had any causal relationship to our client’s injuries.

After the verdict, one of the jurors called me. When I asked him about the lack of pre-op x-rays he stated “we knew that (because of the admissions by the defendant) the lack of pre-op x-rays may not have caused the plaintiff’s injuries, but we just couldn’t get over the fact that no pre-op x-rays were done. His use of the phrase “we just couldn’t get over the fact” had a powerful impact on me.

Great meaning resides in that earnest juror’s statement. It perfectly describes the kind of issues which decide trials. What a jury “just can’t get over” will guide its verdict.

Read more by purchasing Case Framing at Trial Guides