Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck.

I recently sat first chair as my colleagues and I tried a construction case to verdict in the Philadelphia Court of Common Pleas. Our client, a married father of young children, was catastrophically injured while he was on a construction job. He went from being an able-bodied business owner to a person who is permanently disabled and incapacitated, and who requires around-the-clock home care.

Our client’s injury was a tragedy. We knew we had a good case for liability and damages. We had strong arguments that the defendants in the case should have had protections in place to prevent people from falling victim to the dangerous condition that resulted in our client’s injuries. We further argued that the defendants were negligent for failing to provide a safe workplace or warn our client about this dangerous condition.

But the defendants were represented by formidable opposing counsel who put together a compelling comparative negligence argument—the kind that could sway a Philadelphia jury.

The defendants argued that our client was partially at fault because he was an experienced construction worker, had been near that dangerous condition a number of times, and had a duty to inspect the site to ensure his safety. According to the defendants, the location where the accident took place was not cited by the Occupational Safety and Health Administration nor was the location’s owner told that there was a dangerous condition on the property.

But in the end, the jury assigned our client a small percentage of fault and awarded him an eight-figure verdict.

So how were we able to secure such a large verdict and such a small amount of comparative fault despite the defendants’ compelling comparative negligence argument?

• We asked the judge for a pre-testimony point for charge.

The lease between the landlord and the tenant in our case said that the tenant was responsible for fixtures. Under Pennsylvania law, the dangerous condition in our case was a fixture. Taken together, this left no doubt as to who bore the brunt of the responsibility for maintaining the safety of the dangerous condition.

With a month-long trial ahead of us, we were concerned that jurors could be distracted by the “Is [the dangerous condition] a fixture?” question and not as focused on the question we wanted them to focus on which was “Were the defendants liable for our client’s injuries?” We knew this issue would be covered during jury instructions. But we didn’t want to wait until after closing arguments for the jurors to hear those instructions.

So we asked the judge for a pre-testimony point for charge. We asked her to inform the jury, before the trial ramped up, that under Pennsylvania law the object that was the dangerous condition in our case was a fixture. The judge granted our request and made the charge.

Few trial lawyers take advantage of pre-testimony points for charge. But they are powerful tools that help counsel frame a case for the jury in a way that is most beneficial to their client. We did not want jurors thinking about the law of fixtures in Pennsylvania. We wanted jurors focused on our claims for liability. Our successful request for a pre-testimony point for charge played a role in getting jurors to do that.

• We didn’t let the jury forget the subject of the lawsuit.

Knowing that the defense would be arguing that our client’s failure to appreciate the dangerous condition that he fell victim to was the overwhelming cause of his injuries, we wanted to convey to the jury that no reasonable person would have been concerned about what turned out to be the dangerous condition without having been warned about it ahead of time.

We brought in an exact replica of the dangerous condition. It was made by the same manufacturer and out of the same material. We sat it on counsel’s table for the entire trial.

The replica was never out of the jury’s sight. We wanted jurors to look at the replica every day they were seated in the jury box and think to themselves, “That doesn’t look so scary.” We ultimately wanted them to look at our client (more on that in a moment) and think, based on how unassuming the replica was, that there was no way he could have known how dangerous the condition was without being told by someone else.

Obviously, not every lawsuit will allow the parties and their counsel to bring into court a replica of the object that forms the basis of the controversy. By having jurors in our case get comfortable with the object that was the dangerous condition and, perhaps, allow themselves at various times during the trial to think to themselves whether they could have suffered the same fate as our client, we were able to neutralize the comparative negligence argument.

• We did an in-court demonstration.

We were dealing with a dangerous condition that had been in use for almost half a century. It was the kind of object that the jurors had surely come across before in their everyday lives—though likely only from afar. Although we kept a replica of the object in the courtroom, we wanted the jurors to understand just how dangerous the actual object was. We decided it was better to show jurors this instead of telling them.

We had one of the defendants demonstrate how unsafe the object was by breaking it with his own hands. He did so. With minimal effort. Defense counsel objected after he had done so. Perhaps recognizing the damage the demonstration did to the defense’s case, the defendant said aloud that that objection should have come before the demonstration.

In-court demonstrations are risky—just ask the prosecutors in O.J. Simpson’s murder trial. But when that risk is minimized, they can be incredibly persuasive to jurors.

• We were able to get in evidence of subsequent remedial measures.

Even with the exception provided in Pennsylvania Rule of Evidence 407, it is not everyday that evidence of subsequent remedial measures is admitted at trial. But it was here, thanks to a defense witness.

One of the defense’s experts was the quintessential jury-pleasing expert witness. But he made a mistake during my cross-examination of him. Toward the end of it, I held up one of the remedial measures that the defendants had installed after our client suffered his injury. I asked the witness whether he agreed that had that remedial measure been in place at the time of our client’s injury, our client would not currently be brain damaged. The witness disagreed.

When he did, he opened the door for us to seek to admit this evidence in order to impeach his testimony about the measures’ effectiveness. After the judge granted our motion to do so, we called the owner of the building back to the stand. He testified that those remedial measures were now in place and that the expert had personally examined those objects. The owner further testified that the expert had lied when he said he did not agree that the remedial measures would have prevented our client’s injuries.

When cross-examining an expert, you often have to make due with the testimony he gives you. Sometimes, if you listen closely enough, that testimony opens the door for the admission of evidence of subsequent remedial measures.

• We were strategic about revealing our client to the jury.

Some trial lawyers want their injured clients in the courtroom from the start of voir dire or opening statements. I disagree. Trial lawyers must be strategic about when to introduce their clients to the jury. They should build the drama and keep jurors in suspense about how all of the injuries the jurors have heard about can change a formerly able-bodied person. That way, when the jurors finally meet the client, they are part of a collective moment where each juror realizes just how much the accident fundamentally changed the client’s life.

We did not want the jury to see our client until it was time for his wife to testify about his injuries. When our client finally entered the courtroom, hobbling, his wife held him by one arm and I held him by the other. You could have heard a pin drop. More importantly, it created an impactful moment that would not have existed had our client sat by our side throughout the duration of the trial.

As every plaintiffs lawyer knows, comparative negligence is the great equalizer. You can have a clear-cut case for liability on the part of a defendant and an eye-watering estimate of damages. But if you can’t convince a jury that your client is 50% or less responsible for his injuries, your case will go up in smoke.

Through an aggressive trial strategy that incorporated the five tactics I described above, my colleagues and I were able to turn a compelling comparative negligence argument against our client into an eight-figure jury verdict for our client.

Kenneth M. Rothweiler is a co-founder and shareholder of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck. He focuses his practice on catastrophic injury and medical malpractice cases.