S4 Ep1 - Priors, Aggravations & Other Health Problems

[Music] You're listening to Mittnik's monthly brush strokes, a podcast on the art of outsmarting, the fun part that sets you apart. I'm Keith Mittnik, author of Don't Eat the Bruises. For more information visit KeithMittnik.com or email me it's [email protected]. Hello everybody I am so glad to be back with these podcasts. We figured out a way that I could tape them from home so I don't have to go to the studio in New York City so we're ready to go again and do a whole season and I want to start this season with one that I think is really really important because it has such widespread application and I call it priors, aggravations and other health problems and it comes out of car crashes in dealing with really two main situations that we all see all the time in car crashes. One of them is what I call priors meaning the same body part let's say the neck the person had an injury to their neck in the past but it healed up and the defense is making a big deal out of oh you had this crash three years ago and you went to the chiropractor for six weeks. That's a pride. The second situation is instead of it healing after six weeks or so this earlier injury to the same body part never got better let's say it's a herniation it turned out rather than it'd be a sprain strain that healed up it actually was a herniation they diagnosed it with an MRI and it's still there and they're now in your crash and it's made all their life a lot worse this injury was made worse in a meaningful way that's an aggravation so my labels are priors and aggravations. I do want to add though that one of the reasons that I want to start with this is it has such broad application because even if we're talking about a completely different body part even if we're not talking about a car crash it can be a med mal it can be a product liability case it can be any kind of injury case where the person had some significant health problems to a different part of their body this works there too because we know what the defense does in that situation they try to make it sound like you had all these problems before you know you're in a wheelchair you had COPD or whatever the problem you had a heart condition and you weren't very active whatever it was they want to make it sound like your life was so lousy or your client's life was so lousy that why would you why could this make it worse it this can't be a big injury because they were already in such poor shape this works on that too and it'll make sense to you when you think about it but I'm gonna go back to and take you through this and I want to use priors and when we're done with the priors I'll tell you a little piece we add in to make it 50 aggravations but let me start with the priors and you start in jury selection with what I call as is justice as is justice and it goes like this folks I want to talk to you about something that I call as is justice and and we all know it as it means if you buy something off the use rack and it has some flaws and isn't in perfect condition and it says as is then you don't get to bring it back you take it as is well that's same principle applies if someone ram someone out in the road and hurts them and they weren't perfect specimens of health at the time it happened they can get justice too and not discount justice they can get full justice under the circumstances they don't have to be in the prime of their physical life to get justice that's why I like calling it as is justice now the fancy constitutional words are equal justice or justice for all I just prefer as is justice because I think it's it's easier to wrap our heads around does anybody here think that that's that's not a good good way to approach it that's not a good law does anybody think that unless someone is in the prime of their physical health they shouldn't be able to get justice or not real justice anybody feel like that well now I'm now talking talking to you not the jury no one's gonna raise her hand to that because most the jurors are prime specimens of health any more than most the lawyers are so they're gonna go yeah but you need to add a little piece in because some folks may think yeah but I got a bad back and no one ever gave me money so you had this one little piece to it and that will it sounds too simple to be true but I promise having done it a bunch of times it'll work you add in so that you don't have to be a perfect specimen health to get justice when someone thrusts injury into someone else's life unnaturally now why does that help because they go well yeah you know what this problem in my back is a big deal but no one gave me money but you know what if I had a perfectly fine back and then someone hit me on a road and I suddenly had a bad back like this and it was gonna be here forever that'd be a big deal and by God someone would have to pay me a lot of money to do this to me so you are now taking the leverage of understanding and empathy and adding the distancing from now we're talking about someone paying for what was taken so that little part of thrust into the life unnaturally and if there's no issue of compared to fault add in thrust into their life unnaturally by no fault of their own so now that's the void dire on as is justice now let me move into opening and I'm gonna add the little piece for an aggravation case instead of an injury that healed up but it's still out there lingering we're now talking about and we were doing all that for jurors so they understand well you don't they don't get to exploit the fact your client wasn't pristine in hell and by the way before I go into opening let me add one piece if you've got a practice where you have a lot of a car crash cases and a lot of herniated disc cases please don't feel sorry for self and think how come all my clients have some kind of prior and a lot of them have have aggra actual aggravation that didn't heal up and it got just made worse why me well what did I do in another life to deserve this poor poor me don't think that way honestly you know the truth if you do car crash cases with herniations you're not unfortunate to have priors you just have human beings you represented that are grown ups if you specialize in teenagers you probably wouldn't have many priors you probably wouldn't have many aggravation but if you're representing grown ups guess what we use their spines all the time and if you're 30 40 50 60 or more I promise you you've had some problems in your back in your life you slept wrong that a prick you know you got drunk and you pick something heavy up you got you know you're playing you were playing golf and swung and oh there goes my back whatever it was so of course you've got priors it's the nature of the beast with grown ups our spines are under stress all the time they're gonna from time to time get hurt and probably bad enough you went and saw some doctor for a little bit so don't think you got allows the cases you got cases like everybody else now we've covered that let me come back to opening statement and this time we're gonna go from the prior that healed to the aggravation that's still there and in the same model applies I'm just gonna add some layers in that wouldn't be necessary if it had the prior head healed up so we're now back talking to the jury remember in jury selection we talked about as is justice well now I can talk to you about the evidence and you're gonna see and you're gonna see we actually have a law the judge is gonna give you the law and instruct you on it that actually protects people that aren't perfect specimens of health someone that is not in the primer the physical health can get justice to and that is full justice not discount justice so long as they qualify for the protections of this law and what are the qualifications the person has to have had pre-existing conditions to the same body part and we're gonna prove to you that my client qualifies for the Texans that law and if the defense doesn't acknowledge it I promise you by the time we end we will have them admit to you that indeed my client had a pre-existing condition at that same part internet now I'm talking to you again now you but the pre-exit the qualifications for the Texans law is for the aggravation all of the as is justice fits either and now I want to give you the paper piece that will apply beautifully in the aggravation case as well as any other case where your client had significant health problems that the defense is trying to exploit to say your case is worth less and it's just unfair this is how we put a damped end to that and I call it baselines reserves and coping baselines reserves and coping so here's what you'd explain to the jury and in order to do it effectively I like to use two index cards and I put them flat so it was turned like you had your palm to the ground the card would be to the ground what you're creating is two planes take two cards and hold them both down and it creates a space and you want to use as the top like along where your eyes are in the lower part would be along your chest. And that creates a space for you to do this. You can create visual age, you can write it on a flip chart, or you can use your hands or index cards. But it's important, whatever you use to visualize is to really bring it home. And I can't do it because we're in a podcast, but you can visualize it. So let me go back to talking to the jury. We roll right out of As is Justice in opening. We just explain, we're gonna prove my client qualifies for the protections of that law. And now we roll right into this. And here's why folks, there's something called baselines you're gonna hear about. And what's a baseline? It's a baseline of health. And when someone is young, 17, 18 years old, they're baseline and you put it up around your eyes. Use that index card of the palm of your hand facing the ground. There are baselines way up here. There are perfect specimens held. As they put on a few years, it comes down just a bit just because of the normal aging. Now you bring it down maybe to your nose or your lips from your eyes. It comes down a little and then show some time when you do it. Just let your palm come out and they go along at this pace. And then along came an injury two years before the one that brings us here to you folks. And suddenly that baseline dropped and you bring it down, say to your chin, you still got plenty of room before you reach your chest. You're like halfway between your eyes and along your chest line. But you still got these reserves. That's the beauty of the visuals. So let me go back to the jury. So they were up here when they were young, they come down to here as a little of the natural aging. And then suddenly two years ago they were in the crash and they suffered an injury to the vertebrae at the same area. They had a herniated disc there. And suddenly that baseline dropped to here. Right here around my nose or lips. And they were getting along fine at that baseline. What would they have loved to been back up here when they were 18 or back up here before this crash? Of course they would have. But that's not in the cards. But they had adapted to this new baseline. They become accustomed to it and made adjustments to it. And they were getting along well in spite of it. It almost becomes an afterthought that's in their life. And then along came this defendant ran my client from behind and what happened suddenly out of the blue, unnaturally by no fault of her own, that baseline dropped boom down to here. Now you're not all the way down to your chest. You're say down to your collarbone. You're still a little room. So sudden I'm talking to you now, I'll go back to the jury. Suddenly it drops down. And now now you put your hands, folks. I back to you. The first were the baseline along your lips. And now the baseline is down along say your Adam's apple. And you got a gap there of about six inches. And you take that gap out as you talk and show over time, long time and you just keep bringing it back and recycling it, showing that gap. Now back talking to the jury. Suddenly when this injury occurred, that baseline drops significantly. And it will be at that lower level for the rest of her life. It is never going back to where she had adjusted to before. And that is going to be there forever. That difference in baseline for the rest of her life forever is a huge loss, a huge loss. Why? Because before she had reserves, before that crash that happened two years earlier, she was up here and she had reserves. What's that mean? It means she could withstand the first drop that came to her from that earlier crash. Why? Because she still had reserves, which means her ability to cope with this injury is significantly greater. She still could cope because she had reserves. But once that baseline had already dropped from that crash and along comes this defendant and drops it down here, her reserves are dwindled greatly. Her ability to cope is way down. So this impact of this crash had a far more profound impact on her quality of life than that first crash two years ago. Because now her reserves were already depleted and she didn't have the room to have the same level of coping and this will be with her forever. And that is why this injury is so significant. And now we move on. Now you see folks, you don't need a car crash to do the same thing. My client had developed a heart condition. My client developed COPD and has these breathing problems before this malpractice and got their leg amputated as a result of it. So her coping, her baseline was already down here unrelated. Her ability to cope was down. Now this comes. All I'm doing is using the old egg shell. I'm just turn it into the idea. It's the same idea if someone had one eye and they got blinded in the other. It'd be a much worse injury if they had two good eyes and blinded in one. So what we're doing with this baseline reserve as coping is putting it in honest life understandable context so the jury can appreciate those earlier injuries don't diminish the value of what was taken in the way of health. They increase it. They increase it. So that's the whole point of all of this. And I hope you find it helpful. So in conclusion, just remember this folks. If you have a case with priors that healed, don't let those people on the other side convince you that's a case goes in the discount bucket. It absolutely is not. If you have a case where rather than be a prior that healed up, but it actually caused a lifelong injury. In your case, the injury made that injury worse. It aggravated it substantially. That's not a, oh gosh, I got a case that didn't worth full justice. Wish you had a better one. That's a bad injury. It may have more value than if they had a perfectly fine neck. So don't let them talk you in. Don't let the defense trick you in to take in less than what's fair and reasonable on those cases. And the same thing applies if they just generally had the burden of significant unrelated health problems in their life. The last thing that person needed was to have this heaped on top of that in their life. So thank you all. And I look toward our next one. [MUSIC PLAYING] [MUSIC PLAYING]