How David Kleinberg's Unforgettable Theme Anchors Slip-and-Fall, TBI Case

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A well-developed theme can be the crucial difference at trial. A strong theme will both resonate with the jury and serve as the anchor of a lawyer’s case, allowing evidence throughout trial to be framed around it. In openings of a slip-and-fall trial against a shopping center, David Kleinberg introduced a powerful theme as the foundation of his case.

Sharon Sumner claims she suffered brain and spinal injuries in a 2007 fall at a Lake Worth Florida shopping center because of a slippery access ramp on the property. In a 2016 trial against the property owner and the company that painted the ramp, Kleinberg, of Neufeld, Kleinberg & Pinkiert, centered his theme around the chestnut “If it ain’t broke, don’t fix it.”

Kleinberg began his opening by describing Sumner’s vibrant life before the accident, including her years of struggles and successes. These details are meant to sharply contrast with her life after her brain injury, which Kleinberg would ultimately compare to “shaken baby” syndrome. Details like these are important in traumatic brain injury cases where the impact of the injury itself may not be obvious at first glance.  

As Kleinberg turns to the circumstances leading up to the accident — the painting of the sidewalk with slippery paint that Kleinberg says caused the fall — he lays out his theme. “So what did they do?” Kleinberg asks. “They’ve got a perfectly good sidewalk, that ain’t broke, and they decided to fix it.

“They violated the oldest adage in the book. If it ain’t broke, don’t fix it.”

The paint, Kleinberg says, “created an exceedingly slippery and unreasonably dangerous surface, from where there was once a good surface.”

Kleinberg walks jurors through the property and the painting company’s attempts to render the painted ramp less slippery pouring sand on the surface. However, they don’t use enough sand, Kleinberg argues, leaving the ramp a hazard and ultimately causing Sumner’s fall. 

Again and again, Kleinberg returns to his theme and ties it to Sumner’s own injuries. 

“The evidence will show, as it has with Sharon,” Kleinberg says, “that their actions took something that was good, and made it bad; took something that worked, and broke it.”

The theme ingeniously wrapped together the paint job and Sumner’s injuries and served as the center point around which Kleinberg could build his case, which wrapped with a mid-trial settlement. 

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