S4 Ep11 - Heading Off Unfair Rehabilitation Practices

You're listening to Mittnik's monthly brush strokes, a podcast on the art of outsmarting, the fun part, the sketchy part. I'm Keith Mittnik, author of Don't Eat the Bruises. For more information visit KeithMittnik.com or email me, it's K Mittnik at ForThePeople.com. Hello everybody. All right, we are now going to pick up where we left off at the end of the last brush stroke where I told you I promise you how this will laying this foundation down where the jury clearly understands that in this case, your case and most cases, but most importantly, in this case, is more of a dispute about conclusions than it is a dispute over what the fundamental basic facts are. It's a battle over conclusions, not facts. And it's about to bear fruit big time. So we're going to be at the end now. I have finished my board dire. I have collected the names of the folks who are biased and admitted their bias. And by the way, I'm going to pause one second. I hear all the time from lawyers saying, you know, I never say your bias to jury because they're going to that that's like saying you're unfair. I beg to differ. If you inject up front when you doing your little analogy, whether it's pies or barbecue sauce or or wing sauce or or whatever, diet, coke versus Pepsi, whatever it is. If you will inject this phrase, you say, because honestly, I got a bit of a bias against cherry pie. I got a bit of a bias against the tomato barbecue sauce. I like the mustard. I got a bit of a bias. If you inject, I got a bit of a bias. And then when you say does anyone think when I acknowledge to the contestants and revealed to them, honestly, you need to know I cannot assure you I can be completely fair and impartial in this thing. I can assure you that I can base my decision solely on the evidence presented. And I emphasize solely on purpose because of course I'm not going to ignore the evidence. But when we get to the conclusions from the evidence, it may have an unintentional impact on me, no matter how hard I put it, try to put it aside. Because I've got a bias against the cherry pie. I'm just wired that way. Does anyone think that makes me sound unfair or weak minded? No. Does everyone think that was the right and honorable thing for me to say that? Yes. Well, guess what? When you start moving into your issues, feelings against personal injuries, feelings against pain and suffering, non-economic damage, feelings against verdicts, not wanting to be associated with a verdict of millions of dollars, those kind of things, feelings against people who ride motorcycles out on the road rather than the protective cage of a car. I think they're automatically at least partially at fault no matter what happened in the crash. I can go on and on. Whatever it happens to be, if you have injected the word where you modeled the right in honest answers, in your analogy on the front end and you tag to it the word because honestly I got a bit of a bias or honestly I got a bias, not the ugly hateful kind, just the human nature kind. I left that part out, tag that to it. When you move into it and say, so how many of you have feelings against personal injury lawsuits and kind of don't trust them, think people tend to exaggerate. Hands go up. And you start asking, so would it kind of like the pionology? Would it be fair to say that you couldn't put those feelings aside and honestly it may cause you to be hard to be completely fair in a partial. Do your best, that's your best honest answer. People are going to say, yeah, honestly I can't couldn't assure the court because I do have a bias against. They'll start using the word bias because you model it in the appropriate way, not in some ugly hating like racial bias way. You de-stigmatized it. So I know I got sidetracked but that is an important sidetrack. So let me come back. So now I've got my list of everyone that's a caused challenge. I've had my trial partner provide it to me so I got it in hand. I typically don't go and ask every single one because usually by then you're testing everyone's patience. You've been going a while in your internal clocks. It's time to sit down. If I feel like I got all the time in the world, I may talk to everyone individually and say this. But normally I just read their names. If I'm really on a time crunch, I may just say you know who you are folks. I appreciate your candor. I'm not going to list your names. But you know we had a conversation with everyone. And those of you said on a variety of subjects that you could not assure the court, you could be completely fair and impartial under these circumstances, nor that you could base your decision solely on the evidence because it may be evidence plus. I want to tell you, I appreciate all of y'all's candor and that and soul searching on that. If I have time, I read the names off the list real quick. And then roll into this. This is the new piece that comes from this framework of battle over conclusion as opposed to facts. And I will say after listing everyone, I understand folks why you will certainly listen to the evidence in reaching your verdict. You told me every one of you that those feelings may unintentionally or if you need to say will then say will those feelings will unintentionally have an impact on your verdict. And as a result, you could not assure the court that you could be completely fair and impartial. Was that all of you, your best honest answer? And they're going to all say, and actually I they'll raise their answer and I say does that change anyone's conclusion? And I'll say no. Now you've just locked it down because you have reminded them right before the effort to say, right before they're ready to get them to say that you'll base your decision on the evidence. You've just got them to repeat. And by the way, I left one little line out of that, including it this. And all of you on the list told me and I want to confirm it before I sit down. That while you'll certainly listen to the evidence, you cannot assure the court those feelings won't come into play in addition to the evidence. Because while you may the facts may be the facts, the conclusions are a different matter and conclusions can be impacted by these feelings. And you have indicated in my, when I talked to you before, that you could not assure the court your decision will be based solely on the evidence because of this evidence plus situation plus these feelings having an impact on your verdict or your conclusion from the facts. So now you've reminded them then I go through this with them. And this includes some things I did for some time and something that came out right brand new right before we shut down with the COVID. And it's what I call mutual process of respect. So let me give you my last wrap up here on protecting your cause challenges from unfair efforts to undo them or quote rehabilitate. And it goes like this. In addition to tying in what we just talked about, you do this. Say, and I'm about to sit down in an all likelihood, I'm not going to be able to ask you any more questions. They're going to have the last word here. They're going to talk to you. And since I won't be able to get back up before I sit down, I want to make sure to each of you on my list, to each of you who acknowledge that yes, we would have a strike against us if you're in Florida. Yes, you couldn't assure the court you'd be completely fair in a parser. And yes, you couldn't assure your court of be based solely on the evidence because it may be evidence plus those feelings have an impact on the conclusion you reach from the evidence. And we call that a verdict. To every one of you who said that, I've just read your names or I may right now say, and here's your names. I want to confirm a couple things for I sit down since I won't be able to talk to you anymore once I do. And all likelihood was there any confusion. I know sometimes we went back and forth, but to my understanding was that was your final That was the answer you gave at the end of our conversation and was really your final answer on that. Am I correct? Was there any confusion? If so, please tell me so I can follow up and talk about it. And I can tell you from having done that a bunch of times, rarely does anyone raise their hand. So now you've taken away the trick of it. Sounded to me like there may have been some confusion by the defense lawyer. They've just, right before that lawyer got up, said there was no confusion. Then you say, and I wanna make sure again, before we're done, does anyone wanna change your answer? And I don't know I've ever heard anyone say, I wanna change my answer. Then you say, I appreciate Yols taking this process serious. And this is an important process, it's essential to justice and it's what's called a process of mutual respect. And what I mean by that is you have shown this court in this American civil justice process respect by being open and honest and telling us that honestly, I cannot be completely fair and impartial because of my feelings. That is my best honest answer. That is how you showed respect to these process in this American courtroom and thank you. But I said mutual respect. And what do I mean by that? The way we show respect back to you for that is nobody is gonna try to talk you out of your honest answers or twist your arm. So I am gonna sit down if no one else has some dad and can I sit down and rest assured that those answers, those are y'all on the list, I just read all. That was your final answer. Hey everybody nods and you sit out. Now what's the power of that? Hey, I took the trick of trying to claim there was confusion when there was not out. Two, I gave him an opportunity to change their answer and they didn't feel any need to. Three, I confirmed that their answer meant they couldn't assure the court they've verdict would be completely fair and impartial would be based solely on the evidence. So this trick of trying to say, but you'll be fair and you'll base your decision on the evidence, it is a trick 'cause no one is gonna say I won't listen to the evidence, I'm putting my damn fingers in my ears. It makes them sound like a ninco poop. I've taken it away from them because they understand it's not about not listening to the evidence, it's about, it's not just facts, it's conclusions and I've taught them how to respond to it. And I have discouraged the defense lawyer because they're gonna look like jerks. And we've talked about mutual respect and we've honored the respect they've shown. And I have previewed that they will get respect back 'cause ain't nobody gonna try to twist their arm and change their honest answers. And it is hard to get up and do it. True story. I did that up in, where was I? Oh, I tried a case during COVID in Mississippi and the defense lawyer said, I got up, the judge said, I judge called me up right before I did it. Are you about done, Mr. Mittonick? I'm much more time than you got. I said, judge, I'm done in five, 10 minutes unless I stumble on some questions I don't expect. Okay, how long do you have defense counsel? I got a lot of rehabilitation judge. I'm sorry, but Mr. Mittonick, you know, there's confusion, we gotta deal with it. All right. Well, after I did this, you know how much rehab he did? None. 'Cause he's violating mutual respect rules and it's not a trick by me. It is mutual respect. And it ought to be respected, not arm twisted. So I called it out and then that made it hard for them to do it so I got it out of the process. So last part of this, when you go and you hear cause challenges being argued and they say, let's say the defense lawyer, this one is not discouraged and he goes on and uses the old typical, or you know, I just wanna be sure of something here. So I may, maybe you weren't, I was a little confused. I wanna be sure. You know, I bet you can tell this court, you can base your decision, you're gonna listen to evidence, aren't you? Yes. And you can base your decision on the evidence presented. Yes. And in spite of these feelings you got and everyone's got feelings about something, we never ever jury if we had to have people that have feelings about things. In spite of them, you're telling the court, you can base your decision on the evidence in the law given and bring back a fair verdict. Yes. Now, I believe some jurors and I say, yeah, but evidence plus and it'll head it off. But for those who just get pushed by a lawyer who's smooth and just given that kind of an answer and now you're arguing, you're cause challenges and they're saying, judge, they said in spite of all that, they could be completely fair and they could be fair and impartial. They said that they would base their decision on the evidence and give a fair, render a fair verdict. I don't know what else we'd do here. Here's your response because you set it all up by inextricably intertwining this fundamental truth that trials are more about disputes over conclusions than facts. Now you're ready and you did that little end piece and it's fresh on the judge's mind and you say, your honor, simply getting jurors to say that they will listen to the evidence does not address the cause challenge that we established on the record. Those jurors stated that they understood that evidence was just the beginning of the process, not the end and that their feelings would have an impact on their verdict. Remember we discussed the evidence plus reality of how humans make decisions and where there's conflicting evidence, how you can listen to the evidence and still have those feelings have an impact on the verdict or the conclusion. Remember we talked about it and we talked about how one side's evidence may start out behind or the other with a leg up. Remember I even used the analogy from criminal cases if someone didn't trust police officers or if someone had been a victim of a violent crime. You remember that in every one of these jurors understood it. And every one of them said based on that understanding every one of the jurors on the list including the one we're arguing about now said they acknowledged on the record that they could not assure the court that they could be completely fair and impartial because those feelings may come into play in addition to the evidence and all they got them to say is that they would listen to the evidence and be fair. Well that doesn't erase all of that mountain of proof that they gotta be excused for cause and all we're asking for is a fair trial judge they're fighting like their life depended on it 'cause they know they're biased and we got plenty of jurors and we don't wanna try this case twice. Now most times not always, most times judge is gonna hear the fundamental fairness of that argument and go all right granted what next. And when they try it again you say judged I don't need to go through that whole thing again the arguments are the same. I don't know why they're inviting error granted granted granted and at the end exhausted. You go home for the evening with a smile on your face not 'cause you pulled a fast one 'cause you headed off someone who was trying to pull a fast one on the other side and you know your client has a fair shake and that's all we can ask for. You all have a good day and we'll talk next time. (upbeat music) [BLANK_AUDIO]