5 Case Framing Mistakes for Personal Injury Attorneys to Avoid

A personal injury lawyer frames his case before the court

How personal injury attorneys frame their cases for trial can have a big impact on how the jury rules. But there are many different ways to frame a case and even more opinions about which ways work best. That’s why, in my latest episode of Championing Justice: A Personal Injury Podcast, I sat down with nationally recognized trial consultant Jessica Brylo to talk all things framing and more.

“To me, case framing is telling the story a certain way,” Jessica said.

“We have facts no matter what, and we can’t change what the facts are, but the story that we tell about those facts makes a massive difference in outcomes of trials and how the case is perceived by jurors.”

Below, I’ve broken out a few of the tips Jessica shared during our talk. You can also watch the full episode of the podcast on YouTube here:
 

The Top Case Framing Mistakes Injury Lawyers Make

Jessica is a trial consultant who specializes in jury selection, opening statements, focus groups, and case framing. In her over 20 years of experience, she has trained with the well-respected David Ball, conducted hundreds of mock trials, and spoken to thousands of jurors.

Who better for me to ask about the most common framing mistakes plaintiffs’ attorneys make? Here’s what she said.

1. Not Letting Go of Arguments

No one likes to waste hard work and hours of their time, and that can be especially true of injury lawyers developing arguments for their cases. But, just because you put work into an argument, doesn’t always mean that argument is going to make the final cut for your case.

“When you have an argument that you think is strong and you’re having somebody say, ‘Well, let’s let that one go,’ I think that that’s difficult to swallow,” Jessica said. “But sometimes that’s the best thing for you.”

Don’t weaken your case by keeping an argument that ultimately isn’t working for you, no matter how long you spent developing it. Think of this as time spent considering all your options, not time wasted, and move on.

2. Making Your Case Too Complex

Another common trap Jessica sees many attorneys fall into is that of making their cases too complicated. Sometimes we get so wrapped up in every little detail we could include in the case, we don’t consider how complicated this might seem to a jury.

“When everything is important, nothing is important,” Jessica said.

Rather, it’s more important to focus the jury’s attention on the details that really matter:

“You really need to focus it in on a couple of major things—and not that you ignore completely everything else—but, again, what you spend the most time on is what they think the trial is about. So the jurors are going to get an idea of what the case is from what you spend your time on.”

Ultimately, you can frame your case to direct the jury’s attention to specific details, but not if you include so many details they get overwhelmed.

3. Picking Out Every Single Issue

Similarly, playing the spot-the-issue game can prove equally distracting. While many lawyers are trained to throw out every potential issue they can find, the truth of the matter is this can sometimes do more harm than good to your case. Jessica advises attorneys to instead focus on only attacking the issues that would have made a real difference:

“Think to yourself, ‘If this was done properly, would it have changed the end result?’” she said. “And, if the answer is ‘Well, maybe’ or ‘I don’t know’ or ‘Probably not,’ then that’s not really your issue.”

“If it didn’t really matter in what they did later or how their train of thought progressed, let it go.”

4. Forcing a Major Issue the Jury Doesn’t Care About

Another framing mistake to avoid in your cases is making your key issue something the jury doesn’t care about. This is where utilizing focus groups can be particularly helpful, but only if you’re willing to seriously consider the findings they reveal.

“I’m currently doing a monitoring of a trial right now, where I’m reading every day the transcripts of the trial and advising council,” said Jessica, “and the one issue that they think is their number one issue is just not. And we know from focus groups, jurors aren’t going to care.”

“You’ve got to just be careful of that,” she said, “and that the more you push it, the more it becomes the main issue, and then you lose based on that issue.”

Try to make your main issue one that will resonate with most jurors. Even if an issue logically seems to be the most important, you’ll be at a serious disadvantage if the jury doesn’t care.

5. Not Structuring Your Frame to Make Use of Defense Witnesses

The last major mistake Jessica pointed out during our talk was that plaintiffs’ lawyers often miss opportunities to structure their case frame in a way that allows them to use defense witnesses to their advantage.

One way of doing this, Jessica said, is to plan to ask defense witnesses about facts favorable to your case that they will agree with:

“Stick with the points that you know that they have to agree with you on,” she said. This can help make your case look stronger by getting the defense’s witnesses in a position where they have to agree with you, or where disagreeing would make them seem inconsistent on the stand.

Just don’t spend so much time with defense witnesses that the trial becomes all about the other side. “It’s okay to have a short cross,” Jessica said. “Use what you need and then get off.”

“The more you spend with an adverse witness, the more time they take up, the trial becomes more about what they said.”

Short and strategic is the name of the game with defense witnesses.

Apply These Framing Tips in Your Next Case

The more control you have over your case framing, the more confident you can be in a positive trial outcome. Avoid the common framing mistakes discussed in this post, and you’ll be on the right track.

To hear more about Jessica’s thoughts on framing, as well as focus groups and the best ways to approach opening and closing statements, listen to the full episode of the Championing Justice podcast on Spotify, Apple Podcast, or wherever you listen.

You can also check out Jessica’s website, TrialDynamics.net, and download her free guide to mock trials here.

About the Author

Darl Champion is an award-winning personal injury lawyer serving the greater Metro Atlanta area. He is passionate about ensuring his clients are fully compensated when they are harmed by someone’s negligence. Learn more about Darl here.