Putting a Stop to Cherry Picking

[music] Hello, it's Keith Mittnik here again with another of my brushstrokes podcast. And this one is about what I call cherry picking. We all know it. It's where the defense will take medical records or other evidence and take a snippet out of it that creates a misleading picture of what really was going on at the time. A classic example is where they take an emergency room record and show where the complaints that the person was making include the neck but not the low back. And you're lawsuit ultimately while both the neck and the back were hurting originally, the neck heals up, gets better, but the back doesn't and ends up requiring surgery. So, the defense will seize on the list of complaints in the narrative on the front page of that emergency room record that says absolutely nothing about the low back and try to make a big issue out of see this didn't happen in the crash. But when you turn to the very next page of the exact same emergency room record, it has a little diagram of the pertorsso and the lower torso and it shows shaded in as areas that are painful the low back. So, they truly are deceiving the jury by emphasizing one without showing the other. Now, I always think that's a huge mistake. I just have this exact thing I just described as an example happen. And when you point it up and point it out, they look terrible. So, I don't know why they do it but it's a persistent problem and we all know it. So, how do we not only stop it in its tracks but use it against them to punish the defense for not shooting straight with the jury? That's what I want to talk to you about. And one last thing as we go into this, if you give them a free shot at that in opening, the jury won't know what's on the second page. In your case will look bad and you will look like you're hiding the ball. So, you have to deal with it in opening since they get the last word in opening statement. You don't get it in a rebuttal. So, you need to make sure on the front end you point out the rest of it. Now, the downside is sometimes you don't know they're going to do it until it's too late and sometimes you think I can't believe they would do something that deceptive. However, if you've gone to mediation, if you keep your ears open and listen to them, they will alert you in advance that they intend to do that. So, that is you need to anticipate it and be on the lookout for it so you know to deal with it in opening. If you don't know and it pops up in their opening and you haven't covered it, then if you're in a jurisdiction that allows you to object from your table with a little bit of explanation, then I would include it. I would object and say that mischaracterizes the evidence judge. They're skipping the next page that shows the back was complained of. Now, if we're going to say if you're in a venue that wouldn't allow that, then play by the courts rules and don't do that, just say objection that mischaracterizes the evidence. But in any event, let's now get into the nuts of this and the nuts and bolts of this and it's this cherry picking. There are other phrases we hear, cut and paste. I like to say it's like zooming in with an extreme zoom. Everyone's got an iPhone or some kind of galaxy or something and most of them now they know how to zoom in on a picture. If you call it an extreme zoom, people know. Another good phrase for describing is they're taking a snippet out of context or they're looking at something in a vacuum rather than full and fair context. Now, how do we take those type phrases and weave them into way to show the jurors how wrong it is? Let me give you a suggestion of a good starting place. Look at your jury instructions. Most jury instructions have some kind of requirement that the jurors look at all the evidence, the entirety of the evidence. For example, in Florida we have a burden of proof instruction on. We call it the greater way to the evidence. And it says the greater way to the evidence means the more persuasive and convincing force and effect of the entire evidence in the case. It's that last part that is of importance for this component where it says of the entire evidence in the case. I use those instructions, I highlight them, I put them up, I tell them in jury selection. One of the things that's very important folks, we all know in life the quickest way to get to a wrong conclusion when there's a dispute is for things to be taken out of context. We know if someone's serious about getting the truth of the matter in life, things need to be put in context. Well, that's doubly true in a courtroom. And there's actually a law and I want to ask you some questions about it. I call it the anti-cut and paste law or you can say I call it the anti-cherry picking. You can use any of these another way, from time to time we'll say it's the law that's against deceptive and selective presentation of evidence. Law against deceptive and selective presentation of evidence. And then I tell them what the instruction says, like I just read to you. And I say, how do you feel about that? How do you feel about keeping your eye on the ball that it's part of your job to make sure that things are in context that you're getting a full and accurate picture because otherwise we can end up with an unjust result. Are you okay with keeping an eye on that? Make sure things aren't taken out of context. Make sure things aren't cherry-picked in a way that gives a misleading picture of what was really going on. And by the way folks, I'm talking about both sides. You watch us both. This applies across the board. This is serious business. This is about justice. And you folks are coming in and we have an obligation to give you the evidence straight and you have a duty to keep a close eye and make sure that we're living up to our responsibility. Now, when you say that to a jury, you've alerted them. And by the way, in jury selection, none of that, you haven't accused the other side of doing it. If they hop up and object, they're going to look like you're talking about them, which would be a mistake. You're just talking about the general rules of the road for this trial. So it's a good way to introduce this topic. And then as you get into opening, you can convert it into saying things like, you recall I talked about during jury selection, that law that says, you can't take things out of context. And it's so important if we're serious about the business getting to the truth of the matter, that things be put in context. Well, here's why I talked about it. We're going to show you the medical records. And you're going to see that they paint a picture of my client did not have a problem before this crash. It started at the time of the crash and it is never going away. So long as you look at the entirety of the evidence in a fair and accurate way. Now, you will see they've hired a doctor. That doctor is going to come here and testify. We've already had the opportunity to question them both sides get to question each other's witnesses. And we get it in a formal typed up version of it of exactly what was said. It's called a deposition. Well, the doctor they've hired and they're bringing here to court is going to your see, take records out of context. He's going to pull a record up from the emergency room that says and then we go through that explanation. I just gave and he's going to leave out what's on the very next page of the same record. Well, now look if they go on and do that, folks, and I'm now talking to you, you not the jury. If they do it after you've alerted them, that's on them. And they go pay a price because they're going to destroy their believability and they probably will because a lot of them just can't seem to help themselves. But you don't want them to get a head start on it. So you'll have nipped it in the bud. And then let me give you some example. You can work this into board. If you have the time to give a little bit of an story, a little story or an analogy to explain what you meant. When you showed or talked about that jury instruction, how important it was, the things be not taken in snippets, but shown in full and accurate, full and accurate context. You can use this same analogy there or you can save it for closing. I've done it both ways. So let me give it to you. What I'm going to do a closing argument version. What the defense is done with the medical records over and over. We've had to point out to you something that was contained in the same record that gives a completely different conclusion. Then if you just were to look at the one snippet they show you. you. And thank goodness we've got this law that prohibits a verdict to be based on such and they ought not be trying to do that. They did. But we were there to point out the true picture and you were there to watch the whole thing. You know what they're doing is like. It's like if someone went to Central Park in New York City at the roadboat pond and zoomed in on some ducks floating in a couple little trees in the background in a rowboat. Someone would think, oh that's a pretty picture out in the countryside. When nothing could be further from the truth because if you gave a full and accurate photograph by pulling back and showing a more of a wide angle lens of where you really located, you would see the skyscrapers in the background and go, oh my gosh we aren't out in the country. This is the largest one of the largest cities in the world that picture's taken in. It's night and day difference. The only difference is the person holding the camera has zoomed in extremely and gave a false impression. And we then forced it out to wide angle and you got to see the truth. So it is in this case we can't control their lens setting but we sure can show you the fair and accurate lens setting and it is your job to make sure the picture painted here leads to a just result. So that kind of an analogy really brings it home. The point of the being don't let them get away with making it look like they're out in the countryside. When the truth of the matter is you're sitting in the city. Thank you so much. I look forward to the next one and if you want to get more of these, please subscribe. I hope you enjoyed it and if you did please feel free to share it with other lawyers that do the kind of work we do because we all know a rise and tide lifts all boats. See you next time.