Consider Calling Your Client First

Hey everybody, this is Keith Mittnik. And in this series I've called it Handpick Highlights from Click and Pick with Mittnik. Hello everybody. In this episode I want to talk to you about something that is pretty new to me as in the last couple years, but it's paying very big dividends. And I'm surprised I didn't think of it a long time ago. Most of us have been brought up with you do not call your client as the first witness. They're not professional witnesses and you don't want them to have to pass through the stress of cross examination until you laid down the groundwork through your medical experts, the treating doctors, and you pretty much already proven your case, then your client goes up and hopefully they got enough cover if they don't do great because they're not used to being under the hot spotlight across, you're still fine. I was trained to do it that way. I did it that way for 38 years of my career. I still do it that way in some cases, but I have done it on about face. And here's why I sit in the court and listen to opening and I realize no matter how effective I am in taking away all the things they'd like to do to make your client look like a faker or at least an exaggerator and put their character on trial and opening, I've gotten very, very effective at taking all that away in opening. But even with it, when they finish, there's a little bit that sneaks through and I've sat in the court when I finally decided, you know, there's only one person that can honestly put that to bed and it's your client. Because think about it. You put a treating doctor up. What do they hear on cross examination? Well that's based on subjective complaints. Even with MRIs, they say yes, but you have to do a clinical correlation to the findings on the film and the clinical correlation requires you to take their word for it. And their whole game is someone's suing you can't take their word for their symptoms and therefore if it is all or mostly subjective, it's unreliable. That's the defense in a nutshell. And who can fix that problem? The treating doctor? No. All the treating doctor really says is I've been treating this person and I don't think they're making it up and I'm basing my treatment in reliance on what they're telling me, which is perfectly reasonable. But it's not the same thing as the juror going, I've met your client. I've met Ms. Jones. I find her to be believable. I find her to be credible. Once that decision is made, now the cross examination of all of your experts are perfect. Because the juror is going, why are you asking all these questions about subjective and applying, and she's making it up? I met her. She's not making it up. Shame on you. It changes the entire trajectory of the trial. If you don't put your client up, your expert, your treating doctor comes on, does beautiful. However, there's a big asterisk by their name. And the asterisk says, I got to wait and before I put full faith in credit in what they said, I need an opportunity to meet this person and decide if I believe them. It's my job and I'm not going to delegate it to this doctor. So you got a big asterisk. So guess what happens? Your client then goes on last or next to last. And then what comes next? Their expert. So their expert goes fresh. Your expert did good, but had an asterisk. And by the time you erase the asterisk, two, three days had gone by. So they're lost a little bit in the fog of a trial. It's not fresh. Here comes their person who's fresh. If your client has already plowed that ground for you, their cross of your doctors comes later and it's ineffective. And now their expert who builds everything on this subjective and natural aging and degeneration and all that nonsense, it's fallen on deaf ears because the jurors already decided your client's really hurt. It just sets the table for everything. You know what else it does? Guess what comes right before the first witness? Their opening. What is their opening no matter how they try to sugarcoat it, what does it almost always include? An attack on your client's credibility on your client's honor. If your client gets up first witness in his believable, the defenceless credibility in the entire defense rumbles. The jurors go, "Now I know who the problem is here and I know why they needed us to give a week of our time because these people are attacking this lady or this man unfairly." So their voice is shrunk. The entire defense is crumbled. The jury believes your client. So the cross examination just looks like more of the same deception. They've already disregarded. So all these years of going client would never go first, I now want to put them on first with a couple of exceptions. What are the exceptions? Always ask the lawyer when I come into the case, how believable is the client? And I say, "I'm not asking you how likable." That's another question. We'll get to that. I want to know how believable because they can be not all that likable but believable. I still put them up. You know why? You can build an opening boardier closing around not being popular and say, "How many of you think in order to get full justice in America, you've got to be the prom king or queen or the captain of the football team or the cheerleaders or a glamorous model or the most handsome man to ever walk the earth, the movie star looking? Or do you think someone can be not maybe a little off, maybe not quite as popular in the end crowd, but they deserve for the same injury that Mr. most likely to succeed versus someone who wasn't in the cool in group, they get the same justice, one doesn't get more than the other. You can shame the jury to take them that away because you know what? Most of your jurors weren't winning all these contests for popularity and it's ashamed to turn justice into a popularity contest. It is a little, but they're ways to deal with that. And if your client is believable and likable for God's sake, you want to start with them. So that's the question, are they reasonably believable? Scale a one to ten or they a six, seven, eight believable? They're on if it's me with one other exception. You know, things don't go as planned in court and the only time I can get the treating neurosurgeon there is now the first witness. Well, we got to get them up or we're going to lose them. So you know, you don't have a choice. But if I'm given the choice, I want the client to go first. Unless I hear they're a mess and they're not believable. Then you do want to build as much as you can with MRIs and treating doctors and experts before they have to take the stand. But the truth is, if your client takes the stand, I hear it all the time, what if you put them up first and you expect them to do good and they don't because that's happened to me many times. And I've expected them to do poor and they've done good. We all know that. But what if you've been asked, what if you put them up first and they don't do good? Now what? Well, guess what? If they didn't do good late or early, you're probably toast. So it's not that big a risk. If they stink it up on the believability department, you're in big trouble no matter when they're slotted. But if you're counting on the odds or with you, they're going to be reasonably believable. Why wouldn't you win the case right out of the box? So that is my new process. And I wanted to share it with you because every time I've done it, every time I've done it, since I've started, and it's only been the last couple of years we've gotten a very good result. So I know it's counterintuitive. I know it's not the way you were trained. It's not the way I was trained. But I'd ask you to think about it. Are they believable if they are? Think about starting with them. Because I promise you, if you do, and they come off believable, what's the defense got left? Is there a whole case when you distill it down as they're not believable? And once the jury's made up their own mind, how are they going to ever undo that with fancy questions of some other witness? They're not. I hope you all enjoyed it. I hope you found it useful. And I hope you don't mind sharing it with colleagues or friends who may be facing a similar situation, but didn't have an opportunity to listen to it. Because we're all in it together for the same goal, justice for our clients. [BLANK_AUDIO]