The Brick and Mortar of Building a Case

16 January, 2016

Kate Savage

Kate Savage


Winning cases don’t always look like winners when they walk in the room. Sometimes they look hopeless until a dedicated attorney settles in to pour a foundation, frame the arguments, and fill out the full picture.

This is a story of one of those cases that gets passed from lawyer to lawyer, and building a case from the (mossy) ground up, which shows the key parts of transforming a lackluster case into a substantial settlement.

Attorney Kimball Jones found himself talking one day to a woman who had suffered badly in a motorcycle accident. She described the drive that changed her life: crossing the curb into a gas station parking lot, her motorcycle slipped out from under her and smashed down onto her leg. Since then she was saddled with pain, disability, and monstrous medical bills.

She knew the accident wasn’t her fault. She was a cautious, experienced biker with a pristine record, and knew she had crossed that curb carefully – it was something in the gutter itself that made her lose control of her machine.

So she had gone to a lawyer. Who had then sent her to a different lawyer. Who passed her off to another one, and then another. By the time she sat in front of Kimball, she had already seen four or five. All these attorneys found her case tantalizing at first: it had clear causation (the accident obviously caused the smashed leg) and clear damages (multiple fractures that no defense attorney could attribute to some other cause). What stopped each attorney was the third requirement of a good personal injury case: liability. Her bike got out of her control and she got injured – how could you convince a jury this was anyone’s fault?

This is the kind of moment that defines the best personal injury attorneys. The good ones know that winning cases are built – they don’t just come waltzing in the door ready-made. Here are the steps Kimball took to build this tricky case into a big win:

Location, Location, Location: Establish the Scene

The documents Kimball had in front of him offered few glimmers of hope of ever convincing a jury that someone beside his client was liable for her fall.  But where the attorneys on the case before him had shuffled her off to someone else, Kimball took the first important step in building a case:

He left the office.

Kimball went to the gas station where his client had wiped out on her bike. He walked up to the very curb where the incident happened and there had his revelation: this ditch was running with waste water from an industrial building next door, and the constant flow had cultivated a mat of mossy algae on the bottom. The thick slime created the perfect conditions for a slip.

a jury, stuck indoors far from this scene, will never agree with him – unless he finds ways to make the image of this scene as vibrant and forceful in their minds as it is in his.

No matter how skilled you are at case law, statutes, and rhetorical acrobatics, building a winning case requires that you visit the location, if possible. Kimball says this happens to him all the time: while he’s sitting at his desk, he can’t understand how a case could possibly be worth taking. But when he forces himself up and out to the actual location of the event, he quickly recognizes two things: 1) the conditions in this place are dangerous, and the company responsible for that knows it or should know it; and 2) a jury, stuck indoors far from this scene, will never agree with him – unless he finds ways to make the image of this scene as vibrant and forceful in their minds as it is in his.

This second need is what lead him to his next steps:

Pour the Foundation: Stock Up on Witnesses and Subpoenaed Documents

Though Kimball was convinced that the conditions at the gas station were unsafe for motorcyclists, a slimy gutter does not an argument make. To build a winning case, he had to lay a foundation by investigating the full history of this ditch.

He began by speaking with the regulars at this scene – in this case, the gas station employees. They confirmed what he suspected: his client’s accident wasn’t the first here. They had seen it happen several times before. Motorcycles traveling at a normal speed would skid out of control as they crossed the ditch.

This was further confirmed when Kimball subpoenaed the city police department for all information on accidents at that gas station. There had been half a dozen accidents of the same nature in the previous five years. One was even on video: a biker was signaled by the police to pull over, and as he entered the property, the dashboard camera showed him wiping out in exactly the same way Kimball’s client described.

The history of the ditch was beginning to take shape: and along with it, a clear story of liability that could bring relief to Kimball’s client.

Kimball poured the next part of his foundation when he requested all municipal records for the property doing the dumping of water into this ditch. The city records revealed they had long been a menace. In fact, they had dumped so much water down this ditch in the past that they flooded a K-Mart parking lot a quarter mile away. The paper trail of complaints over dumping was glaring: there was no way the owners of the industry could play stupid when they were confronted with evidence of their negligence.

The history of the ditch was beginning to take shape: and along with it, a clear story of liability that could bring relief to Kimball’s client. But how could he finally drive this message home to the defendants in the case, to push them into a settlement?

Frame the Argument: Rally the Experts

Since this case was complex, Kimball knew a jury might get lost at any link of his logic, and could turn against him. He knew he had to frame each piece of his argument with a clear and compelling narrative. He turned to the experts.

Kimball had skilled and respected medical experts, but he predicted the defendants would argue his client had caused her own injuries through reckless driving. So he lined up a motorcycling specialist who could testify to the reasonableness of his client’s riding. To establish the actual danger of the ditch, he looked to the local university and dug up a microbiologist who could analyze the slimy mini jungle growing there. The microbiologist was able to show how the growth from the industrial run-off was different from what would be growing here if the ditches were only fed by rain – and also that it was composed of the same organisms growing next door at the source of the dumping.

Kimball’s strategy is to never find himself ‘out-experted,’ even though that often requires a significant investment of time and money. He knows you can build a beautiful structure of arguments for your client, but if your opponents win the battle of experts, you might as well cue Miley Cyrus: they’ll come in like a wrecking ball.

Kimball’s strategy is to never find himself ‘out-experted,’ even though that often requires a significant investment of time and money. He knows you can build a beautiful structure of arguments for your client, but if your opponents win the battle of experts, you might as well cue Miley Cyrus: they’ll come in like a wrecking ball.

Finally: Make the Argument Vibrant

By digging through the slimy details of this case, Kimball built a case from the ground up. Now that he had the details, it was time for him to use his skills as a lawyer to not merely argue a case, but actually paint a picture of liability. Since the members of a jury wouldn’t ever go to the ditch themselves and feel the mucilaginous algae growing along the bottom, they were dependent on Kimball’s communication skills to understand why the defendants should be on the line for his client’s damages.

But because he prepared adequately for that moment, Kimball’s case never reached that point. Long before a jury could hear about the ditch, the defendants saw they were beat, and settled for a substantial amount.

all plaintiff’s attorneys are builders and defendant’s attorneys are wreckers. No matter how powerful the facts are, a plaintiff’s attorney is required to structure them into a fortress of an argument strong enough to take anything the opposing party lobs at them.

Kimball states now that without any one of these steps – seeing the ditch, talking to witnesses, getting documents about the business and accident reports from the police, lining up key experts – he may not have won this case at all. And his client certainly wouldn’t have received such a sizable settlement.

In a very real sense, all plaintiff’s attorneys are builders and defendant’s attorneys are wreckers. No matter how powerful the facts are, a plaintiff’s attorney is required to structure them into a fortress of an argument strong enough to take anything the opposing party lobs at them. As the story of the mossy ditch shows, sometimes your strongest material comes from very humble places.

And as for Kimball: his persistence in building this case continues to pay off. While he was hounding down witnesses, he spoke with other motorcyclists who had sustained injuries at that same ditch, but hadn’t even thought to file a lawsuit. Ultimately two of them asked to be his clients, and one of these cases has already settled successfully.