How To Turn The Defense Attack On Your Client Back On Them

[Music] Hello, this is Keith Mittnik again with another of my Brush Strokes podcast. [Music] This time what I'd like to talk to you about is how to turn the defenses attack on your client back against them. And one thing we all should be aware of is that jurors often come to court and they've been, we know, taken away from their lives and they're sacrificing their valuable time to be there and sometimes they will be asking themselves either literally in their head or maybe at a more subconscious level, but who's the problem here? Why do we need a jury? Why do they need me to resolve this? Why can't they work it out? And who's the problem? Who is the unreasonable one? And that mental state that is likely to be occurring at some level with those jurors is important to, as soon as you can, let them figure out you're not the problem. It's the other side. And I see their attacks on our clients as an opportunity to show them who the problem is, who's the unreasonable one. And think about this. Jurors can think, well, maybe this plaintiffs lawyer or his client are asking for too much money and that's why we're here. But you know what will change that pretty quickly when the jury figures out the other side is trying to say, it's your clients fault. So the minute they try to pass the blame and you can expose that they're doing it unfairly, it becomes crystal clear who's the problem here. And it's now a conflict because they won't take responsibility. They're trying to pass the buck. And nobody likes that. Those are fundamental principles. So when the defense tries to attack my client, look, there's a case or two out there occasionally where you're where it's your clients under attack because they did something wrong. But those are rare. As I've said many, many times, we're not mercenaries. This is a calling. And if we're over there in front of a jury, it's because we are convinced we are right. Or we wouldn't be there. So if we're right, then their attacks on our client are wrong. Not to say in your client's perfect, but the attacks that the defense is bringing at them to try and show it's their fault. They hurt themselves aren't fair because of as a fair attack, you wouldn't be there. So our starting position is we're there because we are convinced we're right. And therefore the attacks are wrong. So with that in mind, think about how well that works. If you can expose that it is not fair to be attacking your client under these circumstances, then the jury will have their answer. I know who's in the wrong here. I know who's being unreasonable. And the reason I'm having to make this sacrifice in my time is because these folks over there on the defense side aren't playing fair. So how do we do that? Well, you have to think about how am I going to take these attacks and put them in a framework where it is crystal clear they're not fair attacks. And we do that in thinking through what's wrong with the attack. Why are we right? Why are they wrong? And what about these particular circumstances will make that clear to the jury. And how can I best package it so we can get to the truth of the matter sooner rather than later. And I'll give you an example of that type of framework that just came out in a recent trial of mine. One thing I've learned is every time I come out of trial, there are lessons to be learned. Sometimes you come out and say, wow, this really worked. I want to put this down, make note of it so it can be reused. And so I can share it with others if it is a benefit. Other times you come out of a trial and realize there's more work to be done. There's something, another challenge I need to tackle going forward. But this was one of those situations in a recent trial. It was a nursing home case and we got an eight figure verdict on it. And it was one of the most satisfying righteous verdicts I've ever gotten in my career because my client was such a wonderful person. And I felt it was, you know, she was being criticized in a way that wasn't fair. And I felt a heavy obligation to her. She was a lady that had been born with legs that didn't work. She had paraplegia from birth and it worked very hard and had gotten college education and actually a master's degree and taught special needs kids for 30 years. And she was just a wonderful woman with a strong spirit who fought through hardship to really make a good life for herself in spite of all the hurdles that she had to jump through in her lifetime. And I felt a heavy responsibility to get it right. And I truly felt that I was called to stand up for her against these kind of tactics that felt unfair to me. It felt like you were standing up to bully. Now, I'm sure the defense felt they were in the right to be doing what they were doing, but I didn't agree. And I felt it was my responsibility to defend her honor as well as to defend those attacks and the lawsuit. But I wanted to do it from a very positive perspective, not from a defensive one. So let me give you just a couple examples. One of the things that they were criticizing her for is she needed to be turned. It's a case where she got a bed soar and it was ultimately found to be when she went to the hospital. They ultimately found a down to the bone, a stage for pressure sore. She couldn't feel it because of her paralysis. She had just broken her a bone in her leg and needed to be in the rehab at the nursing home for a short stay rehab because she's got a big had a big mobilizer immobilizer on her leg. So for her to be turning and taking pressure off between her paralysis and being using a wheelchair or being in bed, couple with that leg that wouldn't was clunky with and need didn't need to be moved around. She wasn't in a position to protect herself from pressure wounds. She needed to be turned. And while she could scoot around some, she couldn't do that turning that was necessary where you get over on one side and completely relieve the pressure for a while so that she didn't have a lack of blood flow killing off flesh and resulting in a pressure wound. And then to make matters worse, she ended up getting a little friction tear and that further increased her risk for getting a pressure wound. And she just wasn't in a position to protect herself because she couldn't adequately turn on her own. That was our position. They contested it and there was some testimony from their director of nursing that was very helpful to us that she couldn't turn herself. That was one of the battles in the case. We felt strongly that we would win that battle that she could not efficiently or effectively or sufficiently turn herself to protect herself. And then it became even more of a risk when that little tear came about because that area was at even greater risk. And on top of that, she had additional pressure being put down on her bottom because of her spinal bifida. It was painful for her to lay flat. So she needed to be up at an angle in the bed because of the painfulness of laying down. And again, there was some dispute from the defense in the case, but we felt strongly that the jury was going to conclude in fairness, she really couldn't lay back because of the pain her spine of bifida, the problem and her spine would cause her. So their position is we've got this lady at risk, but she's making her own choices and her own preferences that interfered with the ability to avoid this pressure wound and avoid it progressing and getting worse. They said what she her personal choices and her personal preferences included wanting to sit up as opposed to laying flat or wanting to sit up further than she needed to. They also argued that she could turn herself not that she could turn herself that she could move herself in the bed some, but our position was moving. yourself some in the bed is not the kind of release of pressure, the unloading that is required to protect her and that required turning and she wasn't able to adequately turn herself. So those were the, there was more, but those are, there were more things that they said she interfered with, for example, wearing some plastic type underwear that she'd worn her whole life because she had urine incontinence and a catheter that that was adding to collecting moisture and creating other problems for her. And that, you know, there were just a lot of disputes and there were a lot of other issues for which they were raising these, what I would say, criticism of our client saying that Joan Fault and they packaged it, of course, as nicely as they could come up with which is choices of hers and preferences of hers and she had a right to all of that, but you can't blame us for the outcome. You know, something on, we've all heard those kind of defenses. So how did we then say, I want to take these attacks against our client, these criticisms of our client, or even if you put it in a sugar-coated version of them, how can we turn them against us, how can we establish the high ground with them, not make excuses, but the righteous high ground for them, knowing that if we can do that and do that early in the process, it will become more clear that the unreasonable side of this wasn't our side. And so we came up with some words to frame it and I'll just give you just, I'm going to run through a couple of them. Here was one, everybody knows what it means. Everybody knows what to do it yourself, project is. Heck, their TV shows, it's an actual TV show that's a DIY. You can't do it yourself. You can't escape it by if you're ever scrolling through the TV on your TV there, although shows are all over the place, the redoing it to yourself. So everybody instantly knows what it means. So that was one of the phrases we captured. We said, this for her, because of her immobilizer on her leg, because of her paralysis, because of her circumstances, this protecting her from a pressure wound was not a do it yourself, project. You see how instantly everybody gets it, wait a minute, they're saying this is a do it yourself project, it wasn't. Then you add things like this to it, you build off of it and we did. They knew it wasn't a do it yourself project for her. She wouldn't have been there if she could have done it herself. She was there because she couldn't do it herself. She hired them, they was paying them, they wanted this job, this was not volunteer, tear work, they were fully aware of the circumstances that she was in. And the hurdles it would bring if they took this responsibility on charging for it. And they said, we got you, which leads to the second framing word. We got your back, we got your back. Everybody knows that saying, I got your back. It fit extraordinarily well because it was her backside on the lower part of her bottom where she got this big pressure wound where the pressure room developed that was ultimately diagnosed at the hospital, it'll be in this really deep, bad problem. So when you coupled, this is not a do it yourself project. That's why she went to them because she could not do it herself. And they knew she could not do it herself. And they said, pick us, pay us, we've got your back. And she needed them to have her back because she couldn't protect her own backside. She couldn't even feel it, let alone see it. She couldn't turn because she was born with paralysis below her waist. And matters were made worse because she had to have this big clunky from the broken bone, immobilizer on her leg. And on top of that, because of the way she was born with the disability, she'd had her whole life laying flat, wasn't an option for her because it was painful. And you know what they said, they didn't say go away, go somewhere else. This is beyond our abilities. You got to go somewhere else or do it yourself. They said come on in our facility, we got your back. This is a project for us to do for you. This was not a do it yourself project. It couldn't have been. You see how well that feels when you put those concepts together. And now think about the end result from that framing. They were going to be making the same arguments one way or the other. But we got to present them in a from a perspective that highlighted our position which they weren't fair to go after her under these circumstances. And by doing that and framing it that way from the beginning of the case, it's much easier for jurors to in their own minds whether it's a conscious thought or subliminally to realize I know who the problem here is. And it's not this lady who was in need and vulnerable. As ultimately there was no dispute in the case that this pressure wound was avoidable. They just took the position. It was avoidable but the reason she got it was because of her choices and preferences. And a jury came back and said, "Folks, that wouldn't do it yourself project." And you were supposed to have her back. So I hope you find that useful. Think about it in your upcoming cases if they are going after your client to one degree or another which they often do how you can own that and turn that back against them rather than see it as, "Oh my gosh, that's scary to me. Maybe I don't want to take this case for trial." Think of it as an opportunity to actually strengthen your case because of their strategic decisions. Thanks so much for listening and if you found it helpful please share it with other folks because I really do believe in a rise in tide lifts all boats. And if you enjoyed it it's helpful if you don't mind to do either the Apple podcasts or Spotify and rate it. And if you thought it was a five-star give it a five-star. In any event thank you for listening in and I look forward to next time. Goodbye.