January 3, 2025

“Don’t be scared to do something different. Don’t be scared to tell them how much your case is worth. Don’t be scared to listen to the responses and maneuver with them. They’re giving you gold.” 

– Frank Fratello

Podcast Transcript

Sari de la Motte:

You’re listening to the From Hostage to Hero podcast episode number 275. Today I’m here with Frank Fratello. Did I say that right?

Frank Fratello:

You did.

Sari de la Motte:

Okay. Which I normally don’t say because I say Frank and Beans in the big long relationship that we’ve had. No, we’ve only known each other personally for a couple of weeks. Frank, you were at TLU and came to one of my voir dire trainings, and I’m going to give a little bit more background on that in just a minute. But before we get going, congratulations on your win of 2,118,049.94 or thereabouts, which you gave me the actual thing. So congratulations on your recent win. Very, very excited for you.

Frank Fratello:

Thank you so much. We appreciate it.

Sari de la Motte:

We saw each other, I think on Friday, and then you went to trial on Monday, so this is amazing. Before we jump into that, tell me about you. How long have you’ve been practicing? Where do you practice, any specialties, so on and so forth?

Frank Fratello:

Sure. So obviously I practice in plaintiff’s personal injury. I practice at a very large regional firm in Florida and Georgia called Farah & Farah. I work for two gentlemen, Eddie and Chuck Farah. They’re brothers, great guys. They decided after decades of running the firm that they wanted to have a dedicated trial team, and I volunteered. The last two years I’ve been doing all their trials and that’s where I am now. So I’m doing that.

Sari de la Motte:

How have you liked it? How have you liked it?

Frank Fratello:

I love it. I actually really enjoy being in the courtroom. I was so scared to volunteer and I was anxious that I wouldn’t be good enough or everyone else would be better for the other side. And it turned out, the more you get in there, the better you become and the more confident you are, the easier it is.

Sari de la Motte:

Absolutely. I think trial is one of the most fun things that anyone can do, but it is very fear-inducing. Is this the firm that you’ve been at ever since becoming a trial lawyer or did you have another path before this?

Frank Fratello:

When I first got out of law school, I worked for a plaintiff’s personal injury firm, but it was more products liability. And then I moved over to the defense side for a couple of years just to get that perspective. And since I’ve come back, it’s been… This will be my 12th year here at Farah & Farah.

Sari de la Motte:

Great. We’re glad you’re back over on this side. So it was hilarious because at TLU, Trial Lawyers University, you were in my training and I pretty much strong armed you into joining the crew, which you did. So thank you for obeying me. And one of the things that you said is, “Look, I’m not getting all these seven, eight-figure verdicts, that’s not… I don’t know.” And I was like, “Join the crew and you will,” and damn next week you did. So I’m just so excited because you… Tell me a little bit, did you know anything about H2H before we had that interaction? Had you read the book or the podcast? And by the way, you’re not going to get in any trouble. Or was that literally your first, who the hell is this sorry gal and you just decided to join in on that training?

Frank Fratello:

I heard your name and I thought, “Man, that’s a great name. I got to go learn what she has to say.” And it was my first experience with any of it [inaudible 00:03:59] in that room.

Sari de la Motte:

That’s amazing. That’s amazing. Now, I remember in that training you just kept coming up to me saying, “This feels right, this feels right, this just feels right.” So let’s talk a little about that. What felt so right about it?

Frank Fratello:

I always considered myself of trying to think of the other side. People do things a certain way and I try to think of a different way to do it, and this just felt like the different way. It felt like everything I could have ever wanted to think about and all these little ideas I’ve pulled over the two years of doing trials, but I didn’t have a cohesive theme for it and you… This is it. This is everything that I’ve been wanting to do in jury selection. And I was like, “Man, I’ve got to do this on Monday.” And so-

Sari de la Motte:

Oh, that’s amazing.

Frank Fratello:

We did.

Sari de la Motte:

That’s amazing. Let’s talk about your… First of all, that’s so courageous too to be like, “I just learned this.” Yes…

I am recording. Yep.

“I just learned this and I’m going to go try it on Monday.” That’s just like… Most people wouldn’t do that. They’d be like… So I’m so glad that you did that. Tell me about the case and then we’re going to dig into it a little bit. Give me a little overview. What was this case?

Frank Fratello:

Sure. So we had a client, her name was Ms. Johnson D. She was 27, 28 years old when she was in the crash. It was only a couple of years ago, 18 months. So this came to trial really quickly. There were some older cases that settled right before it. So we ended up being there on Monday. She was making a right-hand turn and a guy behind her trying to switch lanes. It was a two-lane road, going in the same direction. And he ends up re-rending her while she’s making the turn. She gets jolted forward, obviously she gets shaken around like a rag doll. She gets out of the car, he comes over, he says, “You don’t look that hurt.” And she goes… And just starts crying. And she said later on that day she started to feel a little bit weird in the neck and the back, but didn’t really get much treatment immediately. She got checked out at not an ER, but like an urgent care center and then nothing for 60 days, so.

Sari de la Motte:

So that day she went to an urgent care center?

Frank Fratello:

Yeah.

Sari de la Motte:

Okay. And then 60 days later, what did she do?

Frank Fratello:

She got MRIs. It was an interesting little case and I knew that would be a big issue. So I did want to use that as one of my pieces to talk about in jury selection, and I’ll tell you about that in a little bit. But she ended up having neck and back injuries, nothing that you could see on MRI because she had facet joint injuries, which are those whiplash joints essentially. The technology in MRI doesn’t allow you to see the tears that go to those joints, which would cause the pains that she was having. And so it became an objective versus subjective case as well. You can’t see it on the picture of an MRI, so how do we believe? We have to trust her. So it became a really big credibility case.

Sari de la Motte:

That was what I was going to ask you next is, so what were some of the things that you had to overcome here? What were the issues in the case? One you’ve mentioned already, which we see it a lot of these types of cases, which is it doesn’t show up on an MRI. And jurors always want something that they can see on an X-ray or an MRI or a CT scan and we don’t have that. What else did you had to overcome?

Frank Fratello:

The other thing is our client, she was 28 at the time of the crash, 29 at the time of trial, and she looked fit as a fiddle. She smiled, she was always outwardly positive. That is her life, it will continue to be her life, but that sometimes is an issue for a jury. So we had to overcome that. And then third-

Sari de la Motte:

You said she was working out, right, even… Right?

Frank Fratello:

And a lot of it was walking, but she was lifting some weights as well, biking. In Jacksonville we have bridges that go over some of the rivers to get downtown and they’re pretty steep, and that was her routine is to walk over those bridges to and from work during lunchtime because she lived in an apartment just over one of the bridges. And that might cut against us in some scenarios. And then finally-

Sari de la Motte:

Anything else?

Frank Fratello:

The last piece. Yeah, the last piece that was really difficult for us is we’re asking for a lot of pain management injections. It wasn’t a surgery case. So when you ask a jury for pain management injections or future medicals that eliminate pain, how can you also ask for those non-economic human damages? I thought that’s always been a real logical inconsistency in most of these pain management type cases. And we confronted that here head on and using your method, the H2H Method, I got some great, great in jury selection and we just followed those up throughout the theming of the trial and it paid off. it was essentially a million dollars in economics and a little less than a million dollars in non-economics. We were able to achieve that when I always thought that that logically when jurors might not make the most sense.

Sari de la Motte:

I want to hear about how you did that, but I just want to recap for everybody listening that we have a young plaintiff who is not that injured because she doesn’t need surgery, is doing and looks well, and we got a $2.1 million verdict. That’s insane. That’s insane. Amazing, amazing work. I think that that’s just an incredible verdict for the facts in this case. Okay, so let’s talk about… First before we talk about how you handled these, how was the defense defending against what you were bringing to the jury? What was their argument here?

Frank Fratello:

That is a great question because these guys were some of the nicest defense attorneys, no arguing on anything. We agreed on most things, which always sends chills down my spine because these guys are going to be reasonable. And in fact, in the weeks before trial, they admitted not only negligence, but they said we did injure her. And on the Saturday before trial started while I was in Las Vegas, they offered a million dollars and essentially said, “If you don’t accept it, we’re going to get up there and we’re going to tell the jury that the case is worth something around that amount and we’re going to make it out to look like you guys are just the greedy plaintiffs.” Of course, they never really said that second part, but that’s exactly what they were going to imply.

Sari de la Motte:

Okay, okay, okay. So hold on. Can I remind our listeners again about the facts of this case? And you had a million-dollar offer on the table, the ball’s on you to fucking walk away from that. What were you thinking when that… Because that’s really the danger point for me and my clients. It’s like, “Oh, we got an offer on the table and now it becomes this.” I’m assuming you talked to your client about that. What was that conversation like when you got that offer and threat?

Frank Fratello:

Yeah. We delivered the threat to her first to make sure she was really into this and she said she trusted us absolutely. And she said, “You’ve done everything for me. You’ve responded in every way and you’ve handled everything perfectly.” Me and my trial partner have done that, David Thompson. And she said, “I trust what you guys are doing. I really would like to have a jury tell me what the value of my case is.” Almost the perfect answer. And so we relayed that to them.

Sari de la Motte:

Perfect plaintiff.

Frank Fratello:

And we went.

Sari de la Motte:

Yeah. I love it. You couldn’t see the gesture I just made if you’re just listening to this podcast. So let’s talk about the H2H Method. So you had just learned it on Friday, was jury selection on Monday?

Frank Fratello:

It was. Monday morning first thing.

Sari de la Motte:

Okay. So you just said a minute ago, “we totally used the H2H Method to overcome some of these things.” So talk me through that. What did you end up doing?

Frank Fratello:

So I didn’t want to mess anything up. So obviously having just learned it, I wanted to try to keep it as simple as possible. So I really used three things that I got from it. I used the Designed Alliance, the introduction. I thought that was incredible. I had-

Sari de la Motte:

Okay, let’s pause there. Let’s stop there. So tell our listeners they know because… Not to scare you or anything, you said you were a little nervous before we started, but we have over half a million downloads on this podcast. But tell our listeners what the Designed Alliance is and what you first thought of it when I taught it.

Frank Fratello:

I can tell you when you first taught it, I was like, “That is so simple. That is me. I can be that simple.” And it was structured in a way that it flowed nicely from piece to piece. The words didn’t really matter, it’s the concept. So I knew I could get up and do that five or six pieces. And so I did that. I introduced myself. I actually picked on instead of asking who here thinks they know what we’re doing. I actually picked on people who had been on juries before. We had four or five people on this panel that had been on series before and they gave it right to me. They say, “You guys are trying to pick out the people who are going to be good for you.” And I said, “Thank you for that.” I looped it with the other people who had been on juries before and then I said, “I understand why you think that way, but I want to do it a little different.”

And then I introduced the concept of, “I’m going to ask you all if you want to be here every step of the way essentially, and at the end of the day I’m going to ask that final question and I’m going to ask you to raise your hands if you want to be here. And if you don’t want to be here, keep your hands down.” And I gave them the caveats, “Obviously I don’t get to make the rules, and two, I won’t get to tell you much about the facts. That’s not the law. And the judge has to enforce the law that we can’t talk about that. So who’s still here wants to be… Or who still wants to be here?” Got all the hands up in the world except for one person. And so we went from there. I just ignored her, and she-

Sari de la Motte:

Which is I think one of the questions we had in that seminar, “What if not everybody raises their hand?” I’m like, “You just ignore them” unless you can’t, unless really get to the point where you’re like, “Okay, I’ve got to ask this person some questions.” And so I just want for our listeners to hear from your mouth, the judge let you do this?

Frank Fratello:

Oh yeah, the judge… And this is a tough judge, a tough conservative judge who I had been in front of a few before and he had interrupted jury selection before. He gives you only two hours, I usually only take two hours anyway, but he let it all go through. He thought it was interesting. I caught a couple looks at him when I turned around to see when jurors made responses. I saw if he wanted to say something and he was just into it. He was really listening pretty good about this-

Sari de la Motte:

This is what I hear all the time. People are like, “Oh my god, my judge will never let me say this.” I’m like, “I don’t know if that’s true.” And also judges are just as bored as everybody else. And so when they see something different, they’re like, “Huh, this is interesting.” So I love that. And everybody listening, listen because I know that’s your big fear is that the judge will let you do it or that you’ll be objected to. Did the defense object to the design?

Frank Fratello:

No, not at all. Not at all.

Sari de la Motte:

So sorry is right again. Okay, so you did the design, everybody but one is like, “Yes, we are willing to have this conversation with you. Continue.”

Frank Fratello:

So I thought to myself, “I like being brief, straight into the point.” I think the H2H Method really lets us do that. And I said, “I really have no clue how to use the filter appropriately, so I don’t want to mess this up.” So I used-

Sari de la Motte:

You mean the funnel?

Frank Fratello:

Yeah, the funnel, the [inaudible 00:16:15] funnels. And so I tried three things, three issues basically. I wanted to look at cane pain versus pilot light pain and figure out what people thought about that because that was going to be a big issue in my case.

Sari de la Motte:

Say more about that?

Frank Fratello:

Sure. I think Keith Mitnik talks about it, but cane pain is pain you can see. Somebody’s missing a leg or they’re limping or they’ve got a brace on or any number of things, a scar. Then there’s pilot light pain, which is just pain that’s always there, but it’s beneath the surface that you can never see. And so I asked a couple of people if they had ever known about what a pilot light was, and there was a few older people and they just educated everybody about a gas stove and it was great. So we got that issue out there. And then there was another guy who talked about cane pain. He was a motorcyclist who had had friends injured in terrible crashes. And he’s like, “Yeah, I would only ever be able to give money for cane pain. I just don’t believe in pilot light pain.” And I’ll tell you a little bit more about that later, but that’s what he said. And I came back to him at another point and really made good use of that statement, but he solved the problem for me.

Sari de la Motte:

You used the metaphor though of that’s the two types of pain that we see in these cases, in this case has more to do with pilot light pain. I love that. I love that. All right, so you got the conversation going there, continue. What else did you do there? That sounded amazing.

Frank Fratello:

Yeah, and I didn’t do it in this order because obviously you talk about sequencing. I actually started out with the gap, the beginning of what my medical treatment would be and I said, “Has anyone ever needed medical treatment? And what was that experience like where you didn’t get it and why?” And five or six hands went straight up and the first question was, “Did she have health insurance?” And I was like-

Sari de la Motte:

Exactly, yeah.

Frank Fratello:

This is perfect. And I said, “Remember we can’t talk about the facts, but is that why you didn’t make it to the treatment?” “Yeah, I had just lost my job, so my insurance lapsed and I couldn’t go.” Sorry, when I tell you that is our exact testimony in the case from her deposition, I was just like, “This is golden.” I said, who else?” Five hands go up. “Yeah, I lost my job too and I needed surgery.” And it was like, “How long did you have to wait after that?” “Nine months.” I was like, “Oh my gosh, I feel so bad for you.” It was all there.

Sari de la Motte:

They solved all your problems if we’re not afraid to go in there and let them do it.

Frank Fratello:

And that was it.

Sari de la Motte:

I just want to keep hearing. What else? What else did you do [inaudible 00:19:01]? This sounds so amazing.

Frank Fratello:

It’s funny. That’s two of the three things. The third thing I did was talk about objective versus subjective evidence. I wasn’t able really to use a funnel because I couldn’t think of it. So I just talked about it. I just said-

Sari de la Motte:

You had just learned it two days before, but yes, I totally get it.

Frank Fratello:

I said, “What do people think about objective? Something that’s objective?” I had them define it. I had people basically loop their answers, see if anyone disagreed. Once we had a full consensus about what the definition was, then I said, “Give me some examples.” And I used what you do in the non-economic and economic damages-

Sari de la Motte:

The price versus value.

Frank Fratello:

Which I was going to use later. I did this for objective and subjective in a… I don’t want to say bastardized, but a bastardized way because I’m sure I didn’t do it perfect.

Sari de la Motte:

No, that’s a great way to use that. I love that. Were you able to have the price versus value conversation?

Frank Fratello:

I did.

Sari de la Motte:

In terms of damages?

Frank Fratello:

And I ended on that. And we’ll get to that in a minute.

Sari de la Motte:

Okay. Okay, okay, okay. So let’s just pause for just a minute. So how did you used to do voir dire? What was your process before meeting me that Friday?

Frank Fratello:

Sure. So it was a lot more adversarial. I was one of these folks that would follow up on the general questionnaires and try to find out a bunch of information, just get people talking. I always try to connect with them. So I’m listening and I know you have three levels of listening. I was definitely somebody who could read the first two levels, but as far as seeing the rest of the room, not really because I was too focused on that one person trying to figure out how I was either going to put my thumb on him or let him up onto the jury. And it just consumes you and it takes you of really good listening to the group and see what you have as the big picture there in front of you, which is ultimately what matters at the end of the case, not any one-

Sari de la Motte:

Yeah, who’s here for me, not who here is against me. It’s a completely different thing.

Frank Fratello:

Exactly. And that usually takes a lot more time. It was taking me two, two and a half hours to do jury selection. And I always felt the last 30 minutes was useless. And I felt like I was always on the knife’s edge of them liking me for two hours and then going, “Oh man, this guy’s really failing us now.”

Sari de la Motte:

Yes. Yeah. It’s like, “Surprise. Now I’m going to kill you here at the end.” How did it feel different? Because that sounds laborious and horrible. How did it feel different this last trial?

Frank Fratello:

It felt very free. All I had to do was facilitate discussion between jurors. I did not have to create any discussion. I did not have to even raise many of the issues that I wanted decided. And they almost went from issue to issue on their own as they talked about the first thing, the gap in treatment. It was so interesting because one of the answers to the gaps in treatment was, “It was pain I thought I could have and I was going to tough it out.”

Sari de la Motte:

Yes.

Frank Fratello:

Okay. Great, let’s talk about that.

Sari de la Motte:

So normal. So normal. All right, so you said you had more to share because you keep saying, “I’m going to talk about that in a minute,” so keep going. This is such a great conversation. Not because it’s proving me right. It is, but I’ve never… I don’t know if I’ve never, there’s probably been a couple people, but someone who just came in contact with the method was like, “I’m going to try this,” and then got such a great result. So this is such a fun conversation. Continue.

Frank Fratello:

Sure. And so we talked about that cane pain versus highlight light pain. That was the last thing I talked about with the jury after talking about the objective versus subjective stuff, put them on the two boards, they named what those types of things are. And people just really loved the subjective coming from a person, it’s like, listen, we’re going to evaluate that person’s credibility. That’s part of your job. Who here still wants to be here? All the hands go up except for that same one person. So I knew they were going to listen to my lady. I knew I had fans at least that would listen to her. And then we talked about cane pain, pilot light pain, and this is where it all just came together for us really. I knew we were going to get a good result. I don’t know how good, but a good result based on the answers to this.

So the motorcycle guy, the when I was telling you about before that said, “I could only give cane pain.” I said, “Anyone else feel that way?” And this guy, he was never going to be on the jury, he was like jury number 30. And he raises his hand, he goes, “People don’t tell the truth about their pains.” And I was like, “Oh.” He goes, “I’m a physical therapist and when they come in, they tell me they’re paying seven or eight, but when I watch them walk out that door, they’re skipping right to their car. And I always watch them. Nobody tells the truth. I don’t believe anybody with pilot light pain really exists.” They’re always exaggerating. And this is where listening number three comes in, level three.

Sari de la Motte:

I just want to pause you for a minute. I just want to pause you for a minute because right here… We’ve talked about this in the training. What if you get the quote-unquote, “Bad answer.” And this is where everybody freaks the fuck out. So I want to hear what you did. What’d you do?

Frank Fratello:

I didn’t freak out, I just kept him talking because I was like, “First this guy’s going to put himself off for cause.” And then I did something that I really thought I would never do, even though I was going to try this H2H Method on Monday. I went with the DVAQ to him. I said, “Yeah, but everybody’s… They’re liars, right? All plaintiffs are liars.” And he goes, “Yes, they are.” And I saw everybody’s reaction on the right side. He was on the left side, which is where I wasn’t going to get to-

Sari de la Motte:

Right. You would actually be on the jury.

Frank Fratello:

Yeah. Everybody on the right side, which were most of the prospective jurors that we would have to choose from, they’re cringing back from him and pushing back in their seats. And up shoots a hand in the back corner. And it’s a guy that just by looking at him, you’d say, “Oh man, that guy’s probably not good for me.” He goes, “I got something to say, Mr. Fratello.” I was like, “Okay, what do you have to say, Mr. Lucas, juror number 15?” And he said, “I don’t agree with that guy at all. I think he’s dead wrong.” I said, “Why do you say that?” He goes, “Look at me. Do I look like I’m in pain right now? I’m smiling, but I’ve got a herniation in my lower back and it’s killing me right now.” I said, “Why don’t you get up and stretch out?” And he does and he starts going, “So I really disagree with you Mr. physical therapist. I really don’t think that I would lie. I’m really this great guy.” And all of the heads are going, “Yeah, this is really a good guy right there.”

This guy was… I would be scared he would torpedo my panel in the past and instead he brought me three defense peremptories in the first six jurors. We had used none when we selected. So they had burned all their peremptories including one on this guy who had responded to the bad guy. And so we had free-reign to pick who we wanted at that point. That’s how good that answer was on the right side of the panel.

Sari de la Motte:

It sounded like it formed the group. We talk about this all the time. For those of you who are like, “What’s a DVAQ?” Devil’s advocate question. So that’s where you use the weird voice and you’re like, “Yeah, but.” What a beautiful place to use it. And what it does is it brings the group together like, “That’s a bunch of bullshit.” And so many people are afraid to use it. They’re like, “This is weird.” It’s so effective as you just showed us, you didn’t even have to call on anybody. That guy tried to get your attention like, “Hold on a minute” and then solved all your problems. Now, he didn’t end up on the jury. He still did such a favor for you. And so that’s what we say those, quote-unquote, “Bad answers” are oftentimes the thing that will either get us something that we really want or form the group, or both. What a great example of that.

Frank Fratello:

I really didn’t know what else to do. I was like, “Ooh, I’m got here.” I was like, “Let me just try this crazy voice.”

Sari de la Motte:

Yes, yes. Oh my God, I love this so much.

Frank Fratello:

And it worked out. it worked out really well. And then from there, I really felt the temperature in the room, that level three listening, that the H2H Method talks about. And I said, “It’s time to talk about personal responsibility now.” I’ve solved my credibility problem. My gap problem is already gone. And then the cane pain versus pilot light pain issue is now almost to bed. And I said, “I got to talk about the money because I have to know. Because again, that’s that logical inconsistency to me is I’m giving you all this money for future treatment. Why would I also give you a whole bunch of money for the pain when that treatment’s supposed to minimize that pain?

Sari de la Motte:

Help the pain. Yeah.

Frank Fratello:

Yeah. And so I started into the damages section and the judge said, “Mr. Fratello, you’ve been going for close to an hour and 15 minutes. I think we should take a break.” And so we take a break and he goes… During break, the judge says, “You only have two hours, so where are you going from here?” I was like, “Hopefully I’ll be done in the next 15 minutes or so.” And he said, “Okay.”

And so we took our break and I came back and I did forget one thing that was crucial here. I’ll admit it to everybody. I did not have the boards. They were still in the car. I was like, “Oh.” And that’s when I knew it and I was like, “Oh, can I run down there in 10 minutes and get them?” And I said, “If I am not back in 10 minutes, I’m going to get in big trouble.” So I said, “No. What I will do instead is I will make myself the board.” I would move from the left side to the right side when somebody said something, I would write it on my chest here. I would be like, “Okay.” And I have glasses, so I would take them off when I was talking about non-economic damage and put them on when it was economic. I don’t know if that made any difference or not.

Sari de la Motte:

Of course it did. That’s great non-verbals. Unbelievable. Very, very creative. It doesn’t always go the way we forget things. What a great way. And so how did that conversation go?

Frank Fratello:

That was really good. We talked about personal responsibility and that was important because the defendants were admitting liability and they were going to tell these people that we should get money. So we talked about that and we said, “What does responsibility mean? What did your parents teach you about that? And they said, “You make it right.” “How do you make it right?” And we walked through it exactly how you had taught it to me on Friday. And we get to the end and I’m about to do my ask, and I’ve never done this in jury selection, tell them how much I’m going to ask for. And so I get up and I say, “$8 million.” And I see the reaction and I ask the question, “Who here still wants to be or who still wants to be here?” And I get maybe half. So I said, “Why do you still want to be here?”

And I go to my friend over in the corner, Mr. 15, number 15, Mr. Lucas. I said, “Mr. Lucas, why do you still want to be here?” He goes, “I want to see what an $8 million case looks like.” He goes, “I don’t know if this is that case or not, but I’m willing to listen.” I was like, “This is the perfect answer.” I was like, “Who else feels that way?” So we go down pretty much the first four rows. Everybody’s like, “Yeah, I want to see this. I feel this. I agree that this could be it. Let me see.” And then we had about half the people not raise their hand. And so I did this, and I don’t know if it’s the right thing to do, but-

Sari de la Motte:

Before you tell me that. Before you tell me that, I just want to point out how you did this perfectly in that when you saw the hands that were not up, most attorneys want to go and go, “Why didn’t you raise your hand?” And what you did was resist that urge, which is the old way and the H2H’s way I’m going to go and talk to my people, the people who are willing. And so I just want to commend you for that because you see those hands that are not up and you’re like, “Shit.” But you go and you talk to your people first. Okay, so what did you do talking to the people who didn’t raise their hands?

Frank Fratello:

I said, “Is there anybody that didn’t raise their hand that now wants to change and raise their hand based on these answers?” I was milking a little bit and nobody did. Everyone had their hands down. And so I went to the person who at the beginning had her hand down and I said, “Why didn’t you put your hands up?” And she goes, I can’t be on this case because I just can’t be fair to a plaintiff.” And I said, “Oh, why is that?” And she says, “Because I don’t believe in pain and suffering, and especially if I can’t see it. If you don’t have a scar, you’re definitely not getting it.” I said, “Okay, thank you. We really appreciate that.” I said, “Anybody else feel that way?” And everybody that kept their hand down for the $8 million ask, put their hand up and was like, “I can’t be fair to you. This case is not worth $8 million. I don’t even have to hear the evidence. I don’t believe in pain and suffering.” And it just went one by one. 15 cause strikes like dominoes over the 30 people.

Sari de la Motte:

That you didn’t even have to set up.

Frank Fratello:

I didn’t set up. They just followed each other.

Sari de la Motte:

Yep.

Frank Fratello:

They followed each other out the door.

Sari de la Motte:

Oh my gosh.

Frank Fratello:

I said, “Okay, thank you.” And I said, “Going back to the two caveats, I don’t get to make the final determination, but thank you. I’ll try to make sure that everybody had their hand up, they get to stay. And I’ll try to make sure that everyone that didn’t gets to go.” And I said, “Thank you.” And I sat down. It was an hour and 37 minute jury selection.

Sari de la Motte:

Beautiful.

Frank Fratello:

It was great. The defense then decided to step into the breach and made a very bad mistake.

Sari de la Motte:

What’d they do?

Frank Fratello:

They got up and said, “Who believes in frivolous lawsuits?” And of course everybody raises their hand and he’s trying to set up the idea that this is a frivolous lawsuit, which it wasn’t because they admit that she was hurt. They admit that we were supposed to-

Sari de la Motte:

Yeah. I was going to say that immediately destroys his credibility.

Frank Fratello:

So he goes through, and that’s the only question he asks, but he goes to every juror and tries to rehabilitate them, which in Florida you can’t really do. So I wasn’t too worried about that. But just hearing the people talk about frivolous lawsuits just makes you just shrink. Did I do enough? Ultimately at the end of his jury selection, he said, “Mr. Fratello gave you a number.” And he said, “I want you to know that we’re going to give you a number when the time is right, but that time is not right now.” And I was like, “Hmm, interesting.” And I said, “How am I going to turn this against him?” And so he sat down and we were going to do openings. We’re going to take a little break after we swear the jury and then do the opening.

I said to my partner who was doing the opening, I said, “I know you memorized everything.” I said, “I want you to get up. We’re going to have the board,” the smart board by now, “And I want you to get up and write number one. I want you to write this is a legitimate case, underline it and write number one, they hit us, and then equal sign agree.” They heard us equal sign agree, it’s permanent. Equal sign agree. And just leave it up there while you do your opening.

And so he gets up, remember the guy just said, “Frivolous lawsuit, frivolous lawsuit” 100,000 times. And we get up and we say, “This is a legitimate lawsuit. They agree they caused the crash, they agree she’s injured, and they agree she’s permanently injured, so I don’t get it.” And then he went in and did his whole thing. The jury recoiled from their opening so hard when the defense got up there and he finished with, “Again, I want you to know I’m going to give you a number, but now’s not the right time.” And they were just like, “What?” And they looked at him with… That level three listening. I felt the temperature in the room just drop for him. And I was like, “He’s not getting this.”

Sari de la Motte:

He’s not in tune with where they are. So many attorneys, some can’t say it in voir dire. Most can say it. I think most jurisdictions allow it in opening at least. But what was that like to say the number in voir dire and then watch him recoil from it in both voir dire and opening? What was that like for you? And why had you not done it before? Maybe we start there.

Frank Fratello:

Sure. So in the past, I had never done it because I thought, “People are just going to be against me from the go. I’m not even going to have a chance to prove my case because I’m going to start a step behind on my own doing.” I think listening to you in the workshop and understanding even superficially the method, you don’t shy away from those things. You’ve got to find it out. And the only way to find it out is by asking. And you might be surprised with how it helps. Then I thought about it a little bit on Sunday, the day when I got back to Jacksonville in my haze, I said, “Yeah, just ask him.”

I’m already thinking if I say the number it’s bad, I’m already thinking that from my past experience. So if you say it and it is bad, you haven’t lost anything. But if it turns out to be good, I got a real chance. And it was really good. Sorry, I can’t even tell you how positive I felt about everything. During and after that jury selection I just felt like we can’t lose. It’s just a matter of how much now.

Sari de la Motte:

Yeah, yeah. I just love that. Because the other thing is, yes, you’re going to find your people who are not for you, but if you do this great voir dire and you have this great… I don’t think you can just lay the number on them in a traditional exclusionary voir dire, because you will fuck the whole thing and everyone will be like… Nobody wants to be there. But when you’ve had a really good voir dire, it really does separate the wheat from the chaff. And not to say that those jurors are bad, it’s like there’s some jurors that are like, “I couldn’t do that,” and we want to know that. But it really gets you the people who said, “Yeah, I would like to see that.” And it also, the second thing is it shows that you’re not afraid of the number. And if you’re not afraid of it, they don’t need to be afraid of it. It’s a real ballsy move. I love that. I just love it. So how long was the trial?

Frank Fratello:

Actually, jury selection and opening was Monday. We put on our entire case Tuesday. The defense put up three witnesses the end of Tuesday and early Wednesday, and then we closed Wednesday afternoon. And then the jury went out, deliberated for three hours, and then asked to come back the next day. They only deliberate to 5:30 and said, “We want to go home and come back the next day.” And we were like, “Ooh, that’s not good.” In my past thinking I said, “Two to four hours is a good time for a plaintiff’s verdict. Longer than four we’ve got to hold out, there’s a problem.” And I’m starting to get worried. And so this had been about three, three and a half, and they said, “Yeah, we want to go home and come back tomorrow.” And they did. And then they deliberated for another three and a half hours, so about six and a half to seven total, and came back with the verdict.

Sari de la Motte:

And what was that like hearing the verdict?

Frank Fratello:

It was incredible hearing the economics. I was tempering my expectation at that point. I said, “Okay, maybe they’ll give me a little something, but we got all of our economics, now this is the moment of truth.” I expected that-

Sari de la Motte:

Because those are the easy ones, yeah.

Frank Fratello:

Yeah. And I said, “Now here’s the moment of truth.” And they came back and I heard for the 18 months they had given her like 50 grand. And I was like, “Ah, again.” And then in the future they’re like… I forget what the math was, but it was like 943,000. I was like, “What?” I was like, “That’s more than 2 million bucks.” And I was like, “Wow, this worked. It absolutely worked.” I was nervous because, like I said, the defense had told us what they were going to do throughout the case, and they actually did it in closing. Their close was 10 or 15 minutes. Didn’t talk about anything other than to say, “It’s our fault, we’re sorry. You all have been wondering…” No pun intended, sorry. “You all have been wondering why we’re here and we’re here because the defense thinks you should give her a million dollars, but the plaintiff thinks it’s way more than that. So now you know why we’re here.”

And he sat down. He did not belabor it, he let it sit there. He looked at each one of the jurors and they looked back at him. And it really felt that was his one resonant moment in the whole trial was in that 15 minute close where he said, “Give them a million dollars.” Basically unspoken, “These guys are greedy. That’s why they’re here wasting your time.”

Sari de la Motte:

Do you get rebuttal close?

Frank Fratello:

We do. So we got up and we said… We said this, and it was short. We just said, “He told you in jury selection, it wasn’t the right time. He told you in opening it wasn’t the right time. It’s because he wanted to see how the evidence came out. And the evidence was 150% for us and now he’s coming in here asking you to rescue him at a million dollars. This case is worth more. That’s what the evidence says. And you all raised your hands when you said you wanted to come in here and decide this case, so go back and do that.” And so the rebuttal was just that. They went back, but I was still nervous because it literally was a very resonant moment for him. He let it sit, he looked at each of them and they looked back. They weren’t recoiling like they had been before. So I was a little nervous when it got to them, but when they came back with that, I thought, “Wow, this really is a really great result.”

Sari de la Motte:

I think so. Absolutely. Especially for the facts in this case. Did you get to talk to any of the jurors afterwards?

Frank Fratello:

Yes. So it’s not who you would think, so we have six jurors and one alternate, in Florida has to be unanimous, but they release the seventh juror upon deliberation. So as soon as the closings are over and they’re charged and it’s time to go back, the alternate juror is released. And every trial I’ve ever had, the alternate juror leaves. This trial, the alternate juror sat there for three and a half hours right behind my counsel’s table whispering in our ears.

Sari de la Motte:

Oh my goodness.

Frank Fratello:

And he said, “I really liked your client. I thought you guys did a great job.” I don’t want to go into too much, but he said, “I think you guys really would’ve wished that I was on that jury.” And he goes, “Because I have strong feelings about this.” And I said, “Okay.” And so when we got the buzzer for them to say they wanted to leave and come back the next day, I said, “All right, thanks for being here.” And he’s like, “I’m coming back tomorrow.” He showed back up at 9:00 AM to wait the additional three and a half hours for the verdict. And they came back at like 12 o’clock and the alternate had left to go get lunch at 11:45. And I said to the judge, I said, “Judge, if the bailiff has his number, call him because he walked out 15 minutes ago to get lunch and we owe it to him.”

Sari de la Motte:

I know he wants to be here, yeah.

Frank Fratello:

The judge agreed.

Sari de la Motte:

Oh man.

Frank Fratello:

“I will do that for you. Mr. Fratello, he’s been here. He was eager. This jury has been very attentive, very together.” So we called him. He ran back in. He goes, “Thank you all so much for bringing me back in.” Jury comes out and they waved to him. And it’s like the one person that we wanted to be the for person who also made a comment about pilot light pain was carrying the verdict. And I was like, “Okay, I’ve got some hope.” Then they read it and like I said, that feeling was just incredible.

Sari de la Motte:

I will posit that the reason why he wanted to be there and come back is because voir dire. That conversation in voir dire just sets the scene for everything that comes after it. When you really have that warm resonant conversation with these jurors, it makes all the difference in the world. I could talk to you forever, this is like a novel. What would be your advice to people listening to the podcast today? Trial lawyers listening to the podcast today, what would be your biggest advice after having this experience?

Frank Fratello:

Don’t be scared. Don’t be scared to do something different. Don’t be scared to tell them how much your case is worth. Don’t be scared to listen to the responses and maneuver with them. They’re giving you gold. Like you said, you said it on Friday, “They give you gold.” And I’m like, “Yeah, let them give you the gold.” And try to bring the other jurors into that conversation and then that gold just piles up. And it’s such a big mountain that the other jurors that are saying, “I don’t really know,” they automatically gravitate to those people who do know. And now those people are your group. They’re your people on the jury, and they’re bound.

Sari de la Motte:

I just love this. I just love this. I just need to say, Frank, it means I see amazing things for you. You’re such a fucking natural. I notice that in the seminar, the fact that you went and you tried this on Monday. Once you really start getting deep into the method. I just ate nine figure verdicts. I just see them in your future. You’re magical. You’re just magical and you’ve got such a natural way about you that… And now that you’re really honing into something that really feels good for you to put on and try, the sky’s the limit. Thank you so much for being here. Any closing remarks before we let everybody go?

Frank Fratello:

No, thank you. Those are some of the nicest compliments I’ve ever had, so I appreciate it, Sari, everything. And thank you for the help.

Sari de la Motte:

Oh my gosh. Thank you for being here. I was just riveted this entire time. What a great result. And I’m so glad you’re in the crew and we get to play together. thank you for being here. Thanks everybody.

Frank Fratello:

Thank you.

Sari de la Motte:

We’ll talk to you.