What separates a pile of good facts from a winning case? Drawing on Trials and Triumphs: Lessons from Legal Giants by Chris Placitella and Lisa Blue, host Brendan Lupetin explores a shared lesson from trial lawyers Pat Malone, Keith Mitnik, and Mark Mandell: winning cases need a clear moral core that actually motivates jurors, not just strong facts. He walks through Greg Cusimano’s seven-step, bottom-up approach to building a trial story and explains why he sees the opening statement as the most important part of trial. Brendan closes with the preparation step he swears by before every trial — a move he credits with sending his win rate soaring.

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• Throwing every fact at the jury and hoping they sort it out is a recipe for losing, and Brendan explains what to do instead.
• Pat Malone warns that trying a medical malpractice case "just on the medicine" is a losing bet, so Brendan digs into what actually flips it.
• Drawing from Keith Mitnik, Brendan explores the real work of trial: shaping what happens in the space “between the fact and the conclusion” a juror reaches.
• Brendan explains how he won a snowstorm slip-and-fall by reframing which door actually mattered to the case.
• Greg Cusimano's seven-step, bottom-up method, as Brendan lays it out, runs from gathering the facts to testing the story against jurors' beliefs.
• Brendan stresses one focus group you must run before trial, and he explains why it can change the outcome.
• Could AI help you win over a jury? Brendan makes the case for using it to crack the metaphors and analogies that make a complex issue click.

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He goes, "Wouldn't we all be happy to believe there's a single universal truth waiting to be discovered by those who have all the necessary facts? We think if only the jurors are able to understand this set of facts, the conclusion will be obvious and truth and justice shall prevail."

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in-depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom, produced and powered by LawPods.

All right, so on today's episode, we're going to continue on with some of the takeaways from this book, Trials and Triumphs: Lessons from Legal Giants by Chris Placitella and Lisa Blue. Here's what that book looks like right here from AAJ Press. I think it's worth the purchase for the price. There's a lot of good stuff in here. What I thought was really interesting is the second chapter is on themes and framing the case. Last chapter was case preparation. What I thought was interesting is sort of the commonality of thinking of how to come up with your themes, how to come up with your packaging of the trial story by all of these different great trial lawyers. And the way the chapter sets out, it actually makes the most sense to go in reverse chronological order of the different comments from these different attorneys. So we start toward the end of this chapter with a quote from Pat Malone's section.

You know Pat Malone is Rules of the Road with Rick Friedman, great book, foundational book that you got to read from Trial Guides. So Malone starts off, he says, "The most important part of trial to me is not any single aspect, opening, voir dire, closing, cross-examination, but getting a story of the case into your head and figuring out a way to make that come alive." When Rick Friedman and I wrote The Rules of the Road Book, it was intended to be a technique just like some of the other techniques such as the reptile. A lot of people have heard about the case framing technique that my friend Mark Mandell is very good at. All these techniques aim at the same thing, which is to come up with a coherent package story theme, whatever you want to call it for your case and put everything in there that belongs in there and throw out the stuff that doesn't belong because it's clutter.

And I've talked about that before and there are so many good trial lawyers out there that talk about the same thing. Joe Fried comes to mind with his light switch concept, boiling the case down to that yes or no polarized concept of the case and then dropping everything else out, simplifying, speeding up the trial. Rick Friedman has a great CLE on Trial Guides called Moral Core Advocacy. And his concept is that separate from the facts, it's critical to try to find what the moral core of your case is so that you're giving yourself the best chance at trial for you and your client to seize the moral high ground. And a lot of times what winds up happening is it's a battle of moral cores or battle of different themes. The defense is often personal responsibility and the plaintiff's is something else. And I touch on a case that I tried last year with Greg and the competing themes were ours was betrayal, betrayal of a hospital to a former doctor that worked there.

And the hospital's competing theme was personal responsibility. Doctor should have gone back to work. He's malingering, he's lazy, he's just looking for money from a lawsuit. And ultimately the betrayal theme beat out the theme that the defense was pushing of personal responsibility. But in any case, so Malone is saying that all these different things that we hear about, these different techniques, rules of the road where you come up with a rule that sort of frames the case, the reptile, they've got their safety rule. Malone's framing, obviously they're all different and they're all worth learning and thinking about the nuances that each of those authors is talking about. But a big part of the case is coming up with what is that winning underlying, whether you want to call it a theme, a frame, the current of the case that's going to simplify everything, unify everything and be the most persuasive argument that you can bring to the jury.

So Malone goes on another part of his chapter. He says in the malpractice arena, which is what I mostly have done for the last 20 years, we often say that if you're trying a case just on the medicine, you as a plaintiff or a plaintiff lawyer are going to lose. And that's because juries are always going to give the benefit of the doubt to the defendant doctor or hospital on pure medical issues. But if you can find an honest theme of the case that is in the jury's domain to understand, such as this is a case about making money inside a hospital in the unsavory ways that just happened in this particular practice causing my people horrible injury, jurors grab onto that. And I think one of the important things to think about there is, especially in medical negligence cases, but in a lot of cases, premises case, product liability, that we as attorneys get so focused on developing the facts of the case and we sometimes lose sight of what are potentially going to motivate jurors the most and finding just good facts might not carry the day.

And it might also prevent you from exploring and going down what might seem like rabbit trails to find big picture information. Give you an example of a case working on presently. I had another case many years ago where we learned there was a doctor who said that the residents within the hospital were basically running wild without proper supervision and that became a big powerful component of that case. But I kind of kept that in the back of my mind. Years later, a very different type of case, but same sort of setting, emergency room, residents running the show and making a big mistake, came up again, injured a different client. And I have that theme in the background, that concept of, look, there was this doctor who said that this was happening. So now the question is why was it happening? And it gives you that thread to tug on and a path to go down to potentially find a big picture moral issue, a big theme that's greater than the individual case that this patient came with me that I think will be much more motivating and compelling and easier to understand by a jury.

But the point of a lot of this is finding that. How do you find that? But a couple other pieces from this that speak to the importance of it in our jobs as good trial lawyers. So Keith Mitnik has a section on here. He starts off talking about creative perspective. He says, "I'm a believer in you can look at something from a little different angle, a little different perspective, add a fact, subtract a fact and get completely different conclusions." We all think it's all one big competition of our facts. The truth is it's about conclusions from facts. And again, to be a good trial lawyer, and what I think is some of the most exciting and fun and exhilarating aspects of trying cases is trying to find the different perspectives to look at good and bad facts. I've talked about previously that from an inversion perspective, you've got to look at how are you going to lose this case potentially and figure out ways to undo that.

Now, the reverse is true too, and you've got to be thinking of, okay, what are the problems out there? What are the bad facts? What are the defenses that they're going to raise the big issue? Why are we having to try this case? Because any case that's going to trial, there's usually some warts in the case and taking time to see if there's a way to flip it. Is there a way to incorporate this? We've got these facts, we know this is the defense's favorite fact. Is there a different way to look at that? So another example of a case that I tried last year was this premises slip and fall that involved a doctor. It happened during an active snowstorm up in Erie. It was icy, snowy conditions and doctor walks out this back door that a lot of people don't use and he slips and falls on ice and injures himself.

And one of the big arguments by the defense was twofold, hey, it was snowing out there, it was icy, things like this happened. And number two, they kept pointing to photographs of the sidewalk and the front entrance. Look how well we took care of this. Salt was down, it's plowed, et cetera. And we thought through that and by digging into it, came to realize that this back entrance door was used by doctors in particular. It really wasn't used by anybody else. And we wound up sort of reframing the whole concept of nobody's saying you did a bad job de-icing and keeping clean the front entryway, but you knew or should have known that most doctors are using this back entrance. And if there's a particular entrance at the end of the day that the doctors, the people that are going to care for your patients are using frequently and you know that, you better make darn sure that that exit area almost more than anywhere else is safe for those doctors to walk out of so that they don't slip, fall, or get hurt.

And that became a more powerful argument as far as the negligence component of it. And that's separate and apart from the moral story of the betrayal versus the personal responsibility I mentioned a moment ago. But keeping with the idea that the facts are what you're dealt with, but it's how you play those facts that's critical in the case. Mitnik goes on. So as lawyers, we have to always keep in mind it isn't so much the dispute over facts as it is the dispute over conclusion from facts. The space between the fact and the conclusion is where our work gets done. Yeah, that's the best part of being a trial lawyer, I think. And that's really where you're earning your money as a trial lawyer is: your ability to not get discouraged by bad facts and looking at it as an exciting challenge of "How can I flip this?

How can I turn this? How can I weave this as a positive end to my story?" And I'm not saying that's always possible to do and sometimes you just have to take it on the chin and put it in context or just accept the fact that this is a bad fact and maintain your credibility. But a lot of times you can flip what seem like bad facts and turn them into very positive ones for yourself. So he goes on why it's so important to take bias out. As soon as we get to a level playing field, that's where we do our work. We can walk up to someone and think that there's someone you know, you tap them, they turn around from the back, they look like someone totally different. How you look at things changes and you've got to strive to always do that.

We're going to talk in a moment about one of the best ways to help you see facts from a different angle and how to see facts from the way that most jurors are going to be seeing the facts in your case, which are oftentimes different than the way you the lawyer do. So Mitnik, another relevant section, he says, "So I'm now faced with a struggle. How do I get it to the right conclusion, not the wrong conclusion? The facts remain the same. The answer almost always lies in asking yourself, why are we still right in spite of whatever that fact is?" Reminds me of a Joe Fried. How can the defense be 100% right and we still win? And these are slightly different ideas because Fried is trying to find that critical issue that is in dispute that you win that makes irrelevant everything else that the defense is saying and the defense honestly might be right about.

And Mitnik here is talking about facts that are in the case that you can't necessarily make irrelevant. How do you flip them around and show that you are on the right path here? And he says, "The answer almost always lies in the circumstances. If you stare at the circumstances with determination to get to the right conclusion long enough and hard enough, you almost always will decide, aha, that's not even a bad fact or aha, that doesn't change that we were right at all. So I work through every problem that way." And that raises another really powerful psychological way that jurors have a tendency to look at cases. So attribution bias where people, jurors are thinking to themselves, "Well, I would've done it differently. I would've gotten a second or third opinion. I would've taken a different route. I would've lived a healthier life." Whatever it is, those become very person specific.

The focus is on the individual rather than they're missing the circumstances. And our job is to explain those circumstances, to show the circumstances that put things in proper context. It's not just about the direct fact of what our client did, it's why they did that under the circumstances in the context of everything else that was going on, in particular what the defendants were doing or made happen that caused the plaintiff to do that in the first place. So a quick little piece from Mark Mandell, and then we get into sort of the why and how to get to the core issue of your case. So Mandell says case framing, he's got two really good books on this. Case framing is meant to be a comprehensive model for preparing and trying cases. It's actually more than a model. It's a mindset. When I wrote my first book, I was asked by the publisher to summarize the entire book in one sentence.

The sentence I came up with was, and this is great for my podcast, "Just verdicts result when everything presented at trial is framed and sequenced to focus juror attention on the points you most want to make." And that gets into the focusing effect, which I'm a big believer in that Kahneman and Tversky came up in their research over the years and how powerful that is. I haven't talked about enough in the past. I highly recommend you read about the focusing effect because that is basically what Mandell is talking about. So how do we get there? How do you get to figuring out what your case frame, your case theme, your moral core is? Well, I mean, you can be very basic about it. You can write or you can run the ideas that you're thinking about by people in your office, by people in your life, your significant other, your friends, your family, anybody you randomly bump into, you get stuck in an airplane, striking up conversation with the person sitting next to you about the basic facts of the case and giving it to them piece by piece.

But as I talk about often like a broken record, focus groups are one of the best ways to help you get to finding the moral core, the key focusing point of your case. So in comes Greg Cusimano, who with a guy named David Wenner, spent something like 20 years doing focus groups around the country trying to figure out why plaintiff lawyers were losing good cases. This was more a product of the struggles from tort reform and heavy duty anti-plaintiff lawyer advertising marketing that was prevalent in the late '80s, '90s, and probably early 2000s. These guys do all this work and they come up, they discover these different biases that a lot of jurors demonstrate and that you have to be mindful of. And I'm not going to go into all the biases that they covered, but more I want to talk about how Cusimano thinks about cases and coming up with this core idea.

And he has sort of a seven step process to help you get there. And then I'll talk about briefly what I think is the most important type of focus group to really help sharpen the point of the spear or distill your case down to its core essence. So Cusimano opens up by saying, "The most important part of the trial?" Not an easy question to answer, but if forced to choose, I'd say the opening statement. Of course, jury selection is critical, but depending on the venue, we have less control over voir dire. The opening statement is reflective of proper preparation and reveals the trial story. The opening is the basis for everything that follows. If we haven't properly prepared, the opening can be more reactive than reflective. The trial story should be consistent, concise, credible, complete, and a guide to what's to come. I wish he had come up with a word at the end there that was C, because he had really good alliteration going there.

But I totally agree with Cusimano on my perspective that opening statement is the most important part of the trial. And it is the aspect of trial that I think that you should be spending the most time getting just right in lead up to trial. I think it's more important than direct. It's more important in cross and closing. And the reason I say that is because everything else unfolds from your opening. Your opening frames the case — it gets the jurors hopefully leaning in your direction, but it also lays out your case. And if you can winnow your opening statement down to a really powerful message that just needs a few pieces of documents or evidence and testimony to support it, then all you have to do on your case in chief is put those pieces in, stay consistent with your opening, and you're at a great advantage in putting yourself in a great and much better position to win your case.

And I'll talk about what I think is the best focus group to do in just a minute, but let's talk about a little bit more what Cusimano has to say on this. So Cusimano talks about the seven steps to building your story. He goes, "Wouldn't we all be happy to believe there's a single universal truth waiting to be discovered by those who have all the necessary facts? We think if only the jurors are able to understand this set of facts, the conclusion will be obvious and truth and justice shall prevail." There's comfort in believing that if everyone had access to the same information, everyone would agree. And I used to think the same thing. Oh, if I just throw out all the facts in this case, the jury will figure it out. They'll figure out what the right thing to do is. And I quickly learned after getting my butt kicked in many jury trials that that's not going to work.

You can't just throw all the facts against the wall and the jury's going to figure out the right answer. They're not generally. You've got to provide them the winning story and frame or else you're more likely than not going to lose. He says that there's comfort in believing that if everyone had access to the same information, everyone would agree. Sorry, I already read that. Yet we know and our experience proves this is just not the case. Different people with access to the same information and the same presentation of facts reach different conclusions. Jurors reach different conclusions about what is true because they start from different places. We all have different viewpoints and we're all coming into a trial with different life experiences, different things people have told us, different core philosophies and thinking, not just about lawsuits, but all sorts of things that are going to impact the way that an individual person sees a set of facts.

So Cusimano talks about a seven-step process that he recommends and he undertakes. They call it bottom-up case preparation. And he and Wenner actually wrote a book that's really good called Winning Case Preparation that you can also buy on trial guys. And I would definitely recommend because it's a really, really good book and does a much deeper dive than the seven points he kind of summarizes here in his part of this chapter. So he says, number one, first we get the facts. As we discussed earlier, we start with the facts and we never leave them. We try to remember it's all about what the jury thinks is important, not what we think is important. Remember that. It doesn't matter what you think. What matters is what the jury thinks on the whole and what they care about and what's going to motivate them. And just because you win this or that or you think you're the smartest person, it doesn't matter if you lose the case, then you didn't do a good job for your client.

Jury research and beliefs reframe, reshape and reorder the facts which can make a difference. Number two, he says, then we do jury research. We use focus groups, formal and informal, such as concept structured, mini mock and mock trials as part of jury research. The concept focus group initially involves the unpacking of the case in a fact neutral, chronological, non-persuasive way. In a concept focus group, you don't initially tell the group all the facts. You introduce them one at a time and then ask them their thoughts. And this is a great way to run your focus groups at the beginning of your case or during discovery. You start to have a timeline of what occurred and you start to lay these pieces out and you're giving the jury limited information. And what that does is that allows you to find out what they're going to take away, what conclusions they're going to jump to from those.

You're also going to learn what a lot of people, what their whiteboard is, what they're coming in with and what most people are thinking about a particular issue. I have a case involving a gentleman riding a motorcycle. He may have been driving over the speed limit. Then there was an obstruction in the road that we say was handled negligently. And doing narrative concept focus groups, you learn a lot about the way that people think about driving on roads and whether it matters if there are people there or not people there. And is it a highway? Is it a back road? What safety steps is the motorcycle person taking? What safety steps is the defense taking in the comparison of the greater risks comparatively between the actions of the defense? And it gives you these significant helpful pieces of understanding like, okay, in doing this on this particular topic, most people felt in this particular way, so I better be mindful of how I'm framing the case because I don't want to be taking a line that is contrary to what most people are thinking.

So they do all that. Then he says in a concept focus group, you don't initially tell the group all the facts, you introduce them one at a time and then ask them their thoughts. Sorry, I keep repeating myself. Step three, we find the case core developing the moral essence of our case. A unifying idea, theme or frame that's a recurring element of the story is essential to the structure. So this is where you start to pay attention to what are the things, the motivators, the beliefs that you're hearing a lot and frequently with the group. And when you're hearing those, you want to go back and check those with everybody. Is everybody kind of agreeing with the following thing that I'm hearing a lot of? And if you're seeing a lot of heads shaking yes, then you're going down a right path of finding what the core issue, the core beliefs are, and then from there you can craft your trial story.

Cusimano goes on, "It should be no more than a few sentences and should provide an answer to what the case is about in no more than a paragraph." For example, I had a hospital case where they took my client to the restroom and she was injured along the way. We alleged that they dropped her. We went through this process. We came up with the essence of the case. A hospital is supposed to help not hurt and we just stayed with that. Now it's not always going to be that simple, but in that particular case, boiled down, that was the winning case core that they discovered from the work that they did on that. And that may sound super simplistic. A lot of times the end outcome, and I even think that sometimes when I think, oh man, I did all this really great focus group work and here's the magical thing that I came up with that was winning the case.

And it sounds so ridiculously simple and obvious, but that's what you have to do. I mean, I remember in all the reptile stuff trying to come up with what your safety rules was and the amount of time that Keenan and Ball were preaching that it takes to get to just the right rule that everybody's going to agree with and nobody can really disagree with credibly and is a central issue and causally linked issue that lines up with the jury instructions that fits in your case. And so again, it sort of sounds overly simplistic, but there's a lot of work that goes into getting to the point where whatever your case core, whatever your case theme is, is super simplistic, which gets a hospital supposed to help not hurt, duh. But that was the controlling issue. There was probably all sorts of other medical care and issues and medication and all these different things in that case of Cusimanos.

But at the end of the day, this is what it boils down to. Number four, he says they frame and reframe. We work with our case to create the design, shape, and outline of the story and decide where to start and in what sequence we try to frame and reframe the point of view and description of the events to provide simplicity, credibility, consistency and completeness based on our jury research and the essential essence of the case. So that is really critical because then that gets into what portions of the timeline of events, what facts are you going to stress, which ones are you not going to stress or ignore because they're irrelevant, don't move the ball for you, and how are you going to organize them? What are you focusing on first and where are you starting the timeline? From whose point of view are you doing it that is most persuasive and most resonates with jurors?

Number five, ultimately we develop a trial story. As we continue to build the trial story, we confirm the best starting point and sequencing to highlight strengths and inoculate against weaknesses. Our story should appeal to the senses and take advantage of all the preceding steps. We consider using anecdotes, metaphors, rhetorical questions and analogies. I will say here that last part, okay, metaphors, rhetorical questions and analogies, those can be really difficult to come up with. And probably my simple mind struggles very mightily trying to come up with really applicable good metaphors and analogies. And that is where I would highly recommend you utilize AI, Claude, Chat, Gemini, because they can come up with, I'm telling you, they come up with amazing metaphors, whether it's issues on jury instructions, aspects of the case, if it's a complicated issue and you need to simplify it, those chat LLM agents are so good at coming up with that stuff.

So I highly recommend you put in, this is the issue I'm dealing with and I'm trying to come up with a metaphor. Give me three really good metaphors that are going to connect and be easy to understand for the jury and you'll be amazed at what these things come up with. Number six, Cusimano says, "If necessary, we test and modify the trial story. We test and modify the trial story in presentation until we're confident we've developed the story that maximizes the chances of success." Number seven, the last step, "Is the trial story consistent with beliefs?" He says, "Once there is a consensus on the trial story, confirm it's congruent with the potential jury's beliefs. Beliefs and attitudes were discovered in jury research and used throughout the process. To provide proof at trial, provide a list of what the jury must believe for you to win, as well as what the jury cannot believe for you to win.

Lawyers using this process can then outline and arrange evidence, exhibits and testimony to accomplish the goal. Jurors must believe the trial story presents the most acceptable solution. The choice is the juries and the lawyer must be the guide on the side, not the sage on the stage as it is said." I think Cusimano says that's pretty slick. But again, what are the facts? What are the issues that the jury has to believe for us to win based off of our jury research and what are the facts and issues that are going to cause us to lose if the jury accepts them without us reframing or putting them in context or incorporating into our story? Which all this takes me to my last point. So you've done all this work that Cusimano is talking about. All these great lawyers are talking about the way that you have to work with a massage and change and look at different points of view to come up with this perfectly packaged product for how you are going to present this case, whether you want to call that a theme or a frame or the focusing point, you do all this work to get there.

Now, my biggest recommendation before we sign off here is that once you've done all that work and you have worked hard to put your opening statement together, it's got the perfect opening, whether it's a rule or unifying concept, you educate the jury properly and then you tell the really compelling right point of view, right facts, right focusing effect story section of your opening, you have all that nailed down, you have the specific pieces of evidence, whatever the demonstrative of the documents or the testimony that is going to be most relevant and powerful to highlight in your opening. When all is said and done, you must, must, must do an opening focus group. And this could be three people, four people, get them on Zoom. Honestly, you know, I reuse people all the time if they're you know, smart, intelligent, insightful, and talkative. And you give your opening statement to them.

You show what you're going to show on your PowerPoint or however you're going to demonstrate things to them, and you go through the whole thing with that group. And I'm telling you, you will get so much helpful feedback. They will tell you definitively, does your theory make sense? Is your theme on point? Are they picking up what the overall moral core concept of the case is and what you are hoping this jury connects and resonates on? And they will also tell you, you know, which pieces of evidence you're talking about, you know, move the needle with them or important to them, which ones didn't so that you know what to cut out. They will tell you where your opening got slow and boring and was not necessary. They'll tell you where their ears perked up, what they were most focused on. They will tell you what questions that they have, what else they want to know.

They'll also tell you about what they were confused with and didn't understand — all of which provides you incredibly helpful advice and recommendations on how to restructure your opening because we're coming full circle and opening statement — I'm telling you — I think is absolutely the most important part of your trial. Maybe one could argue in jurisdictions where there's the Wild West jury selection and you had that opportunity to pick just the right people, explore all their biases and their thinking, most courts don't allow that. The most important aspect of your case is your opening. So you're doing all of these steps, everything. You're thinking about what is the most important, what's the moral core of my case? How am I going to develop this theme? You're applying what Cusimano and Wenner are talking about, their seven step process, bottom up approach to developing that story and that theme and the core of your case.

And then hopefully you're listening to me after you've put that opening together as best you can, you're giving to at least one focus group to get that thing distilled down, set up, packaged, and presented absolutely perfectly. And I'm telling you, since I've been doing that, my win rate on cases has gone up substantially. So I highly recommend that you consider doing that. If you have any questions about it, give me a call. Thanks for listening as always. Until next time, Brendan Lupetin with Just Verdicts.

If you enjoy the show, please subscribe to the Just Verdicts Podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling or referring a catastrophic injury case, we'd love to work with you. Call us at 412-281-4100 or visit our attorney referral page at pamedmal.com/refer. Thanks for listening.