Trial Magazine

We all have seen or heard about wrongful conduct that is so out of the norm that we just can’t get over the fact that someone actually did it. What we “just can’t get over” drives our reaction to an event. It shapes our decision-making.

I-Just-Can’t-Get-Over Issues strike a deep, responsive chord in jurors because they are deeply ingrained in each juror’s life experience. This is precisely why jurors’ reaction to them is “We just can’t get over the fact that. . . .” What a jury just can’t get over will guide its verdict.

Every case has I-Just-Can’t-Get-Over Issues. They can exist as to liability, causation and damages. They can be good or bad for your case proof. Good I-Just-Can’t-Get-Over Issues support your proof; Bad I-Just-Can’t-Get-Over Issues support the defense. This column focuses on Good I-Just-Can’t-Get-Over Issues.

I-Just-Can’t-Get-Over Issues can also emanate from the witnesses and exhibits at trial. For example, the fundamental goodness or humanity of your client or expert can become an I-Just-Can’t-Get-Over Issue good for your case. Your client may volunteer to work with teenage mothers. Your expert may devote four weeks a year to Doctors Without Borders. A juror might react to your plaintiff, thinking “I just can’t get over how kind she is,” or to your expert, thinking, “I just can’t get over how much she has done for her profession.”

There are a combination of attributes that help identify and define the Good I-Just-Can’t-Get-Over Issues in your case. Real case examples follow the attributes below:

• Senselessness: Senseless and inexplicable conduct by a defendant; harm that didn’t have to happen (the surgeon who knowingly performed surgery on the wrong foot).
• Venality: I-Just-Can’t-Get-Over Issues arise when a defendant’s conduct is motivated by greed, selfishness and a callous indifference to the safety of others. Such venality creates a character stain (the drug company that endangered countless people by attempting to cover up its research results to conceal its drug’s significant side effects so that the company could make more profit).
• Personal to the Defendant: Conduct that exposes a defendant’s flaws has a very powerful effect (the obstetrician who ignored advice from an assistant surgeon and used the wrong incision, resulting in an infant client suffering severe brain damage).
• Personal to the Plaintiff: I-Just-Can’t-Get-Over Issues that are personal to the plaintiff often involve shocking results that could easily have been prevented (the defendant who did not provide treatment for cancer that a CT revealed; the plaintiff’s powerful deposition testimony taken shortly before he died revealed that he was aware of the defendant’s gross neglect and that all of what was happening to him was preventable).
• Personal to the Jury: I-Just-Can’t-Get-Over Issues are personal to the jury, especially when they have the potential for causing a widespread, negative effect on the juror’s community. (In one of my medical negligence cases, my client had a lesion removed from her ankle. The growth was actually a newly developed melanoma that was almost certainly curable if timely removed. Two pathologists misread the pathology slides that showed the malignant melanoma. That two doctors misread such an obvious cancer was an I-Just-Can’t-Get-Over Issue.)

You should present and echo the I-Just-Can’t-Get-Over Issues good for your case from the beginning of opening statement until the jury verdict sheet is finally submitted to the jury. You should start opening statement with your Key Good I-Just-Can’t-Get-Over Issue against the primary defendant. Your Key Issue is the issue that will strike the deepest responsive chord in the jury. This issue should usually be case decisive in and of itself. You need to sequence your Key Good I-Just-Can’t-Get-Over Issue first even though that issue is almost never the very first thing that has occurred in the facts of your case. Only after you completely flesh out your Key Good I-Just-Can’t-Get-Over Issue do you move on to describe your other Good I-Just-Can’t-Get-Over Issues in the order of their importance.

Mark Mandell is a senior partner at Mandell, Boisclair & Mandell in Providence, R.I. He can be reached at mmandell@mbmjustice.com.

Copyright © 2019 Mark Mandell. This column includes excerpts from Mark Mandell’s new book, Advanced Case Framing™ (AAJ Press 2019), www.justice.org/AdvCaseFramingBook. A seminar based on the book will be held Sept. 6–7 in Philadelphia, www.justice.org/AdvCaseFramingCLE.