Explaining the Importance of Civil Justice

Welcome back to another season of the Art of Outsmarting with the legendary Keith Mittnik, Keith. Really excited to be here and I have a quick question for you off the bat. Did you manage to do any of the work over the holiday break? I know you're always cooking up something good. I did. I had two back-to-back trials in the year. Both of them unexpectedly ended up moving. One of them settled, didn't think it was gonna be the other guy continued after I was told no way it'll ever get continued. So I had two weeks plus the break over the holiday. So I had like three weeks uninterrupted on my hands, which is really unusual. And in the back of my mind I've had this project. I have felt there's more work to be done in explaining to people why it is what we do and why it's a good thing. Not just because lawyers make money from it and not because one individual hurt gets compensated fairly and reasonably. And that's all it's important to take care of that person in their injuries. But then if it's not involving the person there's a tendency to look down on this civil justice system. There's a tendency to diminish the injuries of others. And I'm not speaking poorly of people to do it. It's it's it's over the years. I've just seen it and I just think it's it's kind of a natural reaction. And I thought there's if we need to learn to communicate better, not just in the courtroom, but in the court of public opinion about why this is a good thing for society as a whole. And I've wanted to attack that issue because I think it's just fundamentally important. But I knew it was a big issue. And you can't do it when I got a trial this week and next week and it because you know what I'm doing I'm dealing with problem-solving and strategies to deal with individual cases or globally on the cases we face. When am I going to deal with this issue that has to do more with the fundamental core values of what we do. And I thought now's the time. So in that time period I hold up over the beach with my wife and I just really woke up every morning when I lay in bed before I crawled out. I was thinking about it. Every night I rock myself to sleep like a meditation thinking about it. During the day I worked on it and I went to the drawing board and then I re-went to the I threw things out I started over. It was like a mad scientist but it was a passion. It was a joy. And at the end the work will never be done on that topic. But I think I made some progress on a journey of a lifetime. And then I typed it up and I sent it out and now I'd love to talk about it because I'd like to share it with anybody who wants to listen because I know there are folks that actually aren't even lawyers that tune into this and I really do think it's an important topic. It is. Let's hear what you've cooked up. Alright so here's the truth of the matter, the fundamental truth. And let's start with this topic. We think about justice as the criminal justice system but it's very limited. It's important. We're going to say I'm not diminishing it. But it deals with people who commit crimes. Usually intentional wrongs. Well the safety stop with you meant to hurt somebody. And if it did how would that benefit society? If we said listen, unless you meant to hurt them, all you can act as reckless or dangerous as you want as long as you didn't mean to hurt somebody, it's okay. We'd have a very dangerous place to live. It's already dangerous enough. We don't need to be more dangerous. So how do you and you would hope that everybody was safe and careful out of courtesy? But we know all of us know that isn't good enough. It is for some of us but not all of us. So how do you establish a system that has some we call it reasonable care for the safety of others? That's where the civil justice code comes in. It truly provides. It is a system for safety when people didn't mean to cause harm. Think about this. We're a country that believes in law and order. But law and order doesn't stop with the criminal justice system. What's the criminal justice system work? It is about crime and punishment. What are the civil justice laws cover? It's about safety and remedies. And so there is an important place for the civil justice code. Not just this person was hurt and they should have a remedy and by God they should. But it also benefits the whole if you really think about it. And that was at the beginning phases in my mind of thinking through this. That's fascinating. Do you bring that up in the courtroom? Is this something that you want to start in this upcoming year? Absolutely. I'm I'm gonna as we go through this I want to talk to you about how we are going to be utilizing to those lawyers that are listening. And it's a work in progress. I've got the basics down the game plan of how to talk about it in an appropriate a proper way with with in the courtroom. But it'll be a work in progress because I haven't tried a case in 2000. I'm gonna I've got a bunch of them coming up in January. I've been 2023. I haven't had a trial yet. So this is going to be new stuff. But I wanted to share it because other people can start this work in progress and make it work better for them. As well as I think when you talk to people and what what do you do for a living? And you say well I'm a personal injury lawyer. Well let me talk to you. And I think it's the beginning of a grassroots to start changing the perception that some people have that's a negative. Not all but some do. So yeah I want to run through that. One of them is by the way what I just kind of laid out. I modified a little bit but just explain the difference between the criminal and the civil system and that the civil system provides for reasonable care. Not extraordinary care. Not asking too much but reasonable care. And a remedy if someone is hurt because you weren't using reasonable care for the safety of others because it's important because we are all sharing the same roadways and spaces. And we need to be careful for the safety of others. Not just ourselves and to explain that and you can do it in jury selection. You're going to ask the question how do you feel about? We know criminal justice deals with crime and punishment. Civil deals with safety and remedies. How do you feel about the idea? Having that those laws in place too. And you hear people a it gets them thinking but importantly jury selection is about before you pick jurors you want to understand their attitudes and feelings. And this will provide a great deal of information about how people feel about it as you start the conversation with them. I think it's respectful to jurors to let them know you're here and giving of your valuable time. Here's why. I also think it helps you do your job in jury selection and gathering information. I love it. It weaves this moral architecture almost into the whole process. How did you develop this? How did you what were you doing in the beginning of your career where you missing these big thematic elements in your discussions with the jury? If the beginning of my career I was just learning that everybody didn't see it like I saw it. Look when it started I didn't know what this I thought I was going to be a criminal lawyer and it'd be in a civil lawyer and I didn't fully understand it. But as soon as I got into it it just made sense to me it seemed right. And then I started seeing ads on tort reform and and here in attitudes during jury selection where people thought it was a money grab and ambulance chasers and all and honestly it hurt my feelings. I'm like why would you think that about me? I took a very personal and I realized it wasn't about me. There was just some misconceptions out there. Look have there been abuses in the system? Of course they have. If lawyers hurt themselves some along the way. Of course they have. This isn't a blameless game but the totality of it is a good thing not a bad thing. And so but as a young lawyer I was fighting to figure out how to try a case and not embarrass myself and do right by my client. What's the evidence code and what's the objection? And you didn't have a lot of time for these bigger thoughts. As I've spent I'm getting close to 40 years doing this. I've spent so much time in it you have a deeper well of a sense of the bigger picture. And so I'm probably in a better position. It's not that I've understood the right and wrong of it. But how do you talk about it? How do you explain? How do you communicate it in a fair way but an easy to understandable way? And then when you move it from talking to people on the street to talking in a court and we have rules and there are things you can say and you can't say. And so how do you do it in a way that's ethical and appropriate and fair? So that's I now have enough base knowledge to to begin that conversation in an appropriate way both in the courtroom and out of the court. I love also how this makes it out. It's not just a nuance of this is a check on corporate recklessness. This puts the jury in an elevated position where they're the ones that are helping society. It makes their use of their valuable time. Look they come into court for oftentimes at least a week. Some of these cases go two weeks, three weeks a month, some of them longer. But on average say a week that's a lot of time for those people to give up. They're busy. They have obligation. They have children's. They have jobs. You know they have things and you're saying come here every day and sit in this courtroom and it isn't your problem. So don't we owe it to them to let them understand but this is an important role. Judges will tell them it's It's the greatest system and we need you and it's one of the most important duties you'll ever do. other than military. But you say that, but this is kind of putting a little more teeth in it. It's a thing, but why is it so important? What it is. And what else would you say to impress this on them? I would want them to know, here's what you can't say. That's good. If it was you, when you want some folks to give of their time to do what's right, to have a just result, and not just leave it at the hands of some insurance company to decide what's fair, is that the system you'd want? Take it or leave whatever they say is fair. So you can't say-- You can't put them-- You can't say any of that. But it doesn't mean you can't talk about the topic. We're in a courtroom of enforcing civil laws. So you can talk about it. Where's that line? Where's that line drawn? As you can't say, put yourself in my client shoes. You can't say, you can't say, be the conscious of the community. Protect your brother and your brothers and sisters out there. That's not appropriate. But that doesn't mean you can't talk about why the system is what its purpose is and why your time is valuable. And this is a valuable use of your time. And we deeply appreciate it. It's such a beautiful way to get around that problem. Yeah, and honestly, to me, I don't see it getting around it so much as getting to the root of it without crossing any lines. It's a conversation that needs to be had in the rules make it an awkward conversation. So I'm trying to figure out how to have an important, fair, just conversation within some constraints that are frustrating, but OK, there are restraints. So I think this, rather than get around it, I think what it is is a righteous path on a topic that needs to be discussed that has some limitations to it. And so let's do it in the right way, but let's not ignore it because you can't just do it in the way you might like to. And within this umbrella, do you have any other things that you like to impress upon the jury? Sure. We're going to-- I'm not going to get to it on this first episode. We just don't have time. But I want to get to a substantial part of a lot of these cases involved pain. And there is a-- when you say my lawsuit to repain, what do people do? They roll their eyes. Why? Because everybody to one degree or others has pain, not all the time, but people have emotional pain. People have physical pain that comes and goes. Some people have chronic pain they live with. And people will say, well, so no one gave me money. And you mean I'm going to sit here for a week because someone's hurting. Get over it. And that is a knee jerk reaction. I don't fault the reaction, honestly. I understand it. But it's not when you have taken the time to explain it to those people. Some just are against the process and against the system. They have a bias against it. It's OK. I got things I have biases against. We all do. They just ought not be sitting and deciding your case if they have it. But if they're not biased and they're open to it, when you talk to people about it, the attitude about it changes. When people understand we're not talking about life's art, they're going to be emotional and physical pain in life. But what if you did not have constant pain and you're mind and young business and someone came along and they acted didn't act safely. They weren't using reasonable care. And suddenly you went from, I don't live in pain. And now I live in pain and I will forever. And it changed on a dime because someone else thrust it into your life unnaturally by no fault of your own. That is a different scenario than someone who has chronic pain that sadly just happened from disease or maybe they played sports like I did when they were younger. But someone did it to them. And it's not punishment. It's recognition of what was lost. But there's more to the pain side of it. It's also, most people aren't in chronic pain. It comes and goes. So you say, get over it. It'll pass. But what if it never pass? And you've got to get people thinking about the significance of it being there all the time. And how much it distracts from the quality of life, the enjoyment, the experience of life, and realize we're not here to compensate really for pain. We're here to compensate for the impact pain has. So let's talk, honestly, about the impact pain is having on my client's experience of life, that their baseline quality of life has been reduced because of it. And it's multifaceted-- hate using big words like that-- it affects a bunch of life. And you can't get it off of you. You think about when you had a toothache. What did you do to not think about it? Or headache? What did you distract yourself? Just how fast did you raise down to the store to get something to make it better? Or to the dentist or whoever? I want this gone. And in the meantime, everything you do is to try not to think about it. And buy your time until it goes. What if it was never going away? That's a big deal. So to say, oh, I have big deal, you got to pay-- it is when it's there around the clock, and there's no end in ever, ever. And you didn't have it before, and now you got it. Or maybe you had a little and now it's much worse. And it happened because someone violated the civil justice laws. Those are the two big parts that I spent my time on. How to explain and educate and remind people this is a righteous system. It belongs in our society, because we are a society in America of law and order. And this is part of law and order. It just isn't when someone did it on purpose, but goodness sakes all of the careless activity that goes on that didn't know them had to hurt anybody. Can not just be saying tough luck, because no one would say that if it would happen to them or their family. So true. Last question to wrap up this first episode. It's a bit of a diversion from this, but something that you mentioned made me think of this. When you're presenting all of this to the jury, are you pinning it on the one person that caused the accident? Or do you draw on the concept that it was the company that didn't have good policies and practices and training? It depends. Good question. But it depends, because there are cases where big companies employee does something, or big companies systems aren't safe, and they hurt someone. But what about the teenager driving a car, ran a red light? What about the nice elderly lady who pulled out in front of somebody? It's just an individual. And those are more difficult cases, because sympathy can come into play for the defendant, because they didn't mean to hurt them. And so part-- when we get into this in the next time, we're going to be talking about the difference between an accident, a mere accident, and a civil wrong, a formal civil wrong that we call negligence, the failure to use reasonable care. And they're not the same thing. Neither I'm involved hurting somebody on purpose, but they're completely different elements. But when you're dealing with not the big corporate situation, the individual, which is a more difficult case for it to get a fair result on. It just is a more difficult case, because you can have biases and sympathies get in the way. You have to be mindful of that. But here's a simple-- just to wrap this session up on that. Here's something that is so important of this, it's lost. There's a line that we have to cross. We have things we have to prove in these cases. Hey, you got to prove there was negligence. There was a failure to use reasonable care. There was a violation of the civil safety code. B, you have to prove that that violation caused harm. And the last part is what's the extent of the harm. And that's the-- what is a fair and reasonable amount to recognize what was taken in the way of health, what was lost in these what we call human damages, as well as economic damages. People tend to lump all that is all in one. Once you've passed the first step, was there a violation of the civil safety code? Was there negligence? The person that caused it is now irrelevant. Because we are not using punitive damages to punish them. Whether they were-- yes, they were negligent, or were they gross negligent. Terrible neck is irrelevant. If it was gross negligence, it would be a punitive damage case, not a compensatory damage case. So the degree of violation isn't an issue. The niceness of the person isn't an issue. The intent of the person isn't an issue. The issue is, if this system is to work, it can't just be in a vacuum. You violated it. You also have, remember, it's about safety and remedy. If you violate and someone's hurt, now the focus is exclusively on how bad is the person hurt from it. And if they're hurt bad, then the verdict ought to be a verdict that recognizes that. If they're a little, it ought to be a smaller verdict. But the verdict has nothing on the damages, the amount, has nothing to do with that individual anymore. You pass the line and that individual becomes this sound silly, but it's not. It's the law. That individual is now irrelevant. Now what you never can tell the jury is, there's the insurance out there that poor little lady can go pay it. And you wish you could. It would change the world. And it's one of the most biggest frustrations in my entire career is that we have this fiction that this person's going to pay it. And they're not, but we can't tell jurors that. But we can explain, trust the process and follow the law. And so once it's been determined, there was negligence. Let's not let, not let sympathy come into play. Trust the process and do your part and set the full and complete about recognizing the remedy is the righteous one. And this is how much it was a lot of hurt. So it's a lot of money. You know why people say, well, that's all about money. It's all about a remedy. And the only remedy is money. Because why? We don't put the person in jail because he didn't do it on purpose. And we don't turn a blind eye to justice and say tough luck either because then we would no longer be a society of law and order. Love that. So to just a quick recap, we are impressing on juries that the criminal justice system punishes crime and punishment. And that's what it's about. And it's about extremes. And the civil system is just as important for society where it's about remedies. And then we paint the picture of pain which we'll get into in future episodes. Absolutely. With one caveat. If you ask me, the civil system's more important because it affects more people. I love that. I love that. Thank you.