Plaintiff’s attorneys often have to overcome a jury’s tendency to engage in defensive attribution, or the mindset that the circumstances underlying an accident couldn’t happen to them. But in a recent webinar discussing Sean Claggett’s $16.4 million verdict for the traumatic brain injury a woman suffered in a slip-and-fall at a Lowe's store, Claggett and legendary trial consultant David Ball discussed how Claggett overcame that juror mindset, and flipped a potential weakness in the case to his advantage.
Kelly Hendrickson suffered a traumatic brain injury that left her unable to taste or smell when she slipped and fell on a slick floor at a Lowe’s store in 2013. In his closing, en route to a verdict holding Lowe's 80 percent at fault for the accident, Claggett, of the Claggett & Sykes Law Firm, told jurors the company focused on what kind of shoes Hendrickson wore rather than actually investigating the incident's root cause.
“You took what is normally one of the great weaknesses — jurors will discuss the kind of shoes [a plaintiff in a slip-and-fall case wore] endlessly in deliberations,” Ball, of Malekpour and Ball Consulting, said. “It’s not just that you argue it down. You turn it and use it to your advantage…. You flipped that so that the thing about shoes now sounds silly for anyone to have taken into account.”
Ball said that flipping that perceived weakness is powerful. “You almost always can do that. Don’t rest until you do.”
And while some attorneys worry that the term "slip-and-fall" itself can be a weakness, Claggett said he owns the term and defuses any bias against it with a simple question in voir dire.
“Ask the jury if any of them have ever been willing to stand up, hold their hands on their chest,” he said, miming the act, “and just let their body go straight backwards with nobody to catch them. Who’d be willing to do that?”
"You can’t do it. It’s almost impossible to make yourself do it,” Ball replied.
The discussion was part of a three-hour webinar, originally hosted jointly between CVN and TBI Med Legal, analyzing the trial techniques that won the blockbuster verdict and powerful approaches to premises liability cases generally.
It's now available on demand as part of CVN Discovery, an ever-expanding collection featuring hours of webinars and interviews from the nation's top attorneys on both sides of the courtroom. It's a deep dive into the proven techniques that win trials. The content is fully indexed, allowing you to choose whether to jump directly to the subject that interests you, or watch the full video.
And it's included free with CVN's unrivaled trial video library.
Email Arlin Crisco at firstname.lastname@example.org.
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