S4 Ep3 - The Dignity of Damages

[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 kmittnik at forthepeople.com. Hello everybody and I want to pick up with a damage argument that I called establishing the dignity of damages and it I'm doing this right on the heels that we talked about not letting them turn your case inside out. In my new book I hope will be out for too long before too long with trial guides it's called Deeper Cuts. I'm going to lay out in detail a system that I call maximum damage matrix and it's a way to get the maximum damage in cases in all cases but it's particularly designed for those cases where you can't judge a book by its cover where the person looks fine but it and it's not the injury is not interfering so much with doing as it does with the experience of doing because it's a lower level pain that's always there annoying and eroding kind of like background noise when you walk in a department store and there's that hiss that drives you crazy but it doesn't mean you fall on the ground and flop around you can still shop and function walking in out of the store it's an injury kind of like that so I want to give you another piece of that that I call the dig establishing the dignity of damages but before I go there I want to give you a phrase that I just came up with that I think is very powerful simply for describing in a way that jury can really understand it and also for yourself to help kind of galvanize and crystallize how that kind of injury where you can't judge a book by its cover takes a huge toll over time it just takes a toll by taking in small bits that's why it's not so obvious from the outside if it was very intense pain the person be limping around or screaming like you hit your thumb with a hammer it's unmistakable those injuries may be very obvious but they aren't very big because they don't last long the kind of injuries that I'm talking about are the ones that are much less intense therefore they do not cause external obvious symptoms but they take a huge toll in small increments over the long haul because they're forever injuries so I came up with what I think is a really good characterization in a way people can understand it and here it is forever pain steals like an in-bezler in small sustained amounts over the long haul so it goes unnoticed by outside observers and in the end millions of dollars have been taken I'm gonna say it one more time it steals like an in-bezler in small sustained amounts over the long haul so as to go unnoticed by outside observers in the end millions of dollars have been taken the reason I like that is most people understand in-bezlers you know try not to be caught so they don't go grab all the money like a bank robber and that's the way this injury is it comes in smaller increments they take small amounts why so it isn't noticed by the outside by observers that's how this kind of injury is it's for the long haul they're trying it's to make it last for this injury last forever but in the end when you add up all those smaller amounts it adds up to a huge amount and next thing they've taken away millions of dollars and I think that just really fits this now having said that when you're gonna talk about millions of dollars or significant amount of money with the jury the first thing you have to do is establish with that jury the dignity of damages and by that I mean we got to put it up on the pedestal where it belongs it's nothing to make excuses for it's nothing to be ashamed of this is American civil justice clients don't this I'm now talking to you not the jury we're gonna convert to the jury in a minute but clients don't come to you or me to have a philosophical debate over who was right or wrong out in the road that day or or whether the doctor was right or wrong or that product was right or wrong say for not I mean they want to find being that the person they're suing was wrong but they didn't go through all this come higher lawyer and go through being jacked around and harassed and everything and then sit through trial and answer in the rockatories and depositions all to have a philosophical debate over right and wrong why did they come to us they came to us for a remedy a remedy we're in the business of getting remedies and what's the remedy money damages and we got to get comfortable with it because we can't possibly do our job for the clients until we recognize that's my calling and there's nothing wrong with it it's American civil justice and we don't turn a blind eye to justice because that's no justice at all and we don't do eye for an eye justice and go tear up someone else's back or poke their eye out or cost them their wife's life because that's barbaric so what do we do we have a remedy and this is the remedy it's all we got and you know what it's righteous so I now want to convert that basic concept and I want to add one piece before I convert it just to get yourself believing of the full value not just token amount and not just some amount but maximum justice the full and fair amount one of the things you got to do because I've had to do it to myself I'm not being preachy I mean I've been through it is to remind ourselves what if it was me there's no golden rule prohibition to talking to ourselves or not the jury's not here this is for us and we can't stand up and deliver and a closing argument asked for a substantial amount of money if we're queasy about it they'll pick up on it you can't do it you got to believe it and you got to believe in your heart and your soul which means you sometimes have to give yourself a little talking to and remind you of things that's what I'm here for this is a very admirable thing to do and if I'm going to do it I'm not going to do it in a half-ass way I'm going to do it and I'm going to do it fully and right and proud and strong and one of the things to get there is you have to say to yourself what if it was me what if somebody came and I had a healthy back and they came along and tore it up and for the rest of my life I was going to live with it on my best day in nagging pain that's always there and never goes away it's unrelenting you know my worst days it's flared up and really disrupted it and I didn't have it before now I got it and it's never going away like that crickening that you woke up with except there was no end in sight I promise you if someone came to you and that happened to you thrust into your life unnaturally by no fall to your own you wouldn't say in someone in a lawyer came to you and said you know I think 150,000 is reasonable you know you'd say you got to be kidding me that ain't even close but you know what we've all been affected by people who told us that's what the case is worth whether it's an an adjuster whether it's a mediator whether it's your mentor we've all heard it and we just put it in that box it's just the way it is well that's not the way it is first of all that number was artificially deflated and unfair many many years ago when people said that's them out and now we've had inflation everything else has gone through the ceiling that one's still there and it wasn't fair way back when so we got to adjust it not just for the times but for the fairness of it in the starting point is to imagine what if it was me let's say you didn't have a good back and it's you you had some problems with your back you've been had dealing with them for a long time but it's become it's your baseline your custom to it you're getting by well with it and suddenly someone drops that baseline down on you we talked about baseline or will and another one of these but suddenly for the rest of your life that baseline is dropped down for the rest of your life and your ability to cope is less because you already had lost some of the healthy back and now it's less healthy forever that chunk of dropping your baseline forever is a big deal too and if it was you and they said well I think you know this is an aggravation this isn't a you know like you had a good back and I think probably this one we probably you know somewhere around maybe 80 90 thousand be fair again if it was you you'd say hey I didn't like the way my back was but my gosh it's worse forever and someone did it to me. It didn't just happen. And you're telling me that's only worth 90,000 for my next 35 years or 15 years or 50 or whatever it is. Once again, you'd say I'm getting a new lawyer. And you'd say wait a minute, everyone values it this way. I'm saying to you and I'm not preaching to you, this is honestly. I had to have this same talk to myself. These are revelations that came about more recently. Matt Morgan, one of my partners kind of he he would it was intended by all this. He was younger. I thought, well, you don't know better. And I finally convinced him. I said, you know what? It's not that he didn't know better. It's that he hadn't been turned upside down by all this propaganda over the years. He's looking at it fresh the way I ought to be looking at it. So now I look at it that same way and I want to share it with you because we got to get full value or we or we're honestly falling short of the mark. And we're all none of us got into this make a buck. We got into this to do right and to do right by our client is to be bold and understand the dignity of damages. And we start with ourselves and then we convert it to our jurors. So let me give you a lot of this came from my talking to to myself when Matt and I were having these back in force that I had my own conversion, my own epiphany, my own real awakening. And then I converted it into a way to talk to the jury about it so they can understand the true dignity of damages. And we can put it up where it belongs on a pedestal not down in some ditch that was dug out by the insurance industry with all of their propaganda and they make us apologize for some well I'm done apologizing I'm proud and I'm going to show the jury I'm proud and I'm going to use words like this. I previewed a few of them in my talk to you now we're going to convert them in in earnest. And right before I start giving money damages we're going to talk about this we will have gone through in these cases where you can't see the injury we're going to have put an end of the littleing pain with those terms like this is pilot light pain not pain pain and those kinds of things that interferes more with now with the doing I'm sorry it interferes now more with the experience of doing than the actual doing but this is good it's going to get it's only going to get worse in time and it's going to interfere more and more over time with the doing and this is a verdict for all time we get it right now we don't get it right at all I will have gone through what I call putting an end of the littleing pain that you can't see that I've touched on in the previous podcast right after that I'm going to start laying the foundation for the dignity of damages and the next step which I won't cover in this is going to be to roll into actually having the audacity to ask for full value and by audacity I don't mean you know strut and fancy nose and there cocky I mean you've got the bravery and the courage to do what's right this comes in the middle we put an end of the littleing pain and we aren't yet to asking for full and fair amount where we do it and believe it and we validate it with reasonable and fair measuring sticks or damage models we're right in between those this is the middle of those three steps in what I call the maximum justice matrix that I lay out in detail in in the upcoming book so let me hit this piece now I am talking to the jury folks I want to talk to you about these non economic damages people call human damages some people call it pain and suffering damages it's the impact on the enjoyment and quality of life and I want to talk to you about the fundamentals and American civil justice from which it flows we don't believe in eye for an eye justice when someone hurts someone else that's barbaric we do not go and say you know we're going to tear your backup like having a my client that's just not acceptable in our society today maybe in the olden days not now but we also don't believe in turning a blind eye to justice because that's no justice at all we don't say tough luck just because it can't be cured the fact that it can't be cured makes it worse not a reason to turn a blind eye so what do we do what do we do in America in without situation what we do is gather people out of the community like you to come and sit in judgment and to assess the full and fair value of what was taken in the way of help and it's not about how much someone's going to get it's not about how much misjones is going to get she'd rather have her health back but that's not an option we can't go back in time and erase it she's got to live with it forever so it's not about how much she's going to get it's about how much was taken what is a fair value for what was lost at the end the net is going to be a loss to her because she's still going to have the problem but we're not going to just ignore it because you can't cure it that would truly be unjust we're going to weigh it we're going to assess it we're going to value it fully and completely what is the value of what was taken in the way of help forever keeping in mind health is one of the most precious things people have it's extraordinarily valuable and have part of that taken by no fall of her own thrust into her life unnaturally because someone else wouldn't do in their job on the road that day we don't do a token amount we do full and complete justice that wasn't for everybody some people really couldn't do that job because it just wasn't the way they were wired in their beliefs but none of them are sitting on this jury every one of you said I can respect and get behind that process of recognizing the full and complete value for what was lost without any outside concerns or biases or sympathies I'm just going to sit down roll up my sleeves use our collective wisdom here as jurors and we're going to decide the amount of help it was taken and what's a fair and reasonable amount for that because it's not how much she's going to get it's about how much was taken and what is a fair value for what was lost and you have to keep in mind this is a verdict for all time we don't come back in 10 years 20 30 40 and do an update and call us all back together and say how you doing we get it right now or we don't get it right at all and you've seen the evidence and you know the magnitude of what was taken from my client not in a big large chunk all at once in small pieces relentlessly or a long period of time and we're just getting started on her journey with it and this doesn't get any better it's going to get worse when the natural aging process overlays on top of those damaged links in her spine because the spine never gets day off it is always being used it is always under stress looking up looking down looking left looking right sitting stand and even sleep and tossing and turn it it never gets a day off and you've heard the medical testimony and you have your common sense with those damaged links and all that activity and stress over time it is only going to get worse and start interfering more with the actual doing a lot has been taken and now I want to talk to you about what is fair and reasonable amount and at that point you're going to roll into damaged model folks but what you have done is you started by putting an end to blittling pain by using those phrase by using the things like I gave you the analogy about a crick in the neck and waking up all the sudden the jury goes wow I get it that's a big deal the man wakes up in the morning I'm just going to very quickly do it to bring it to so it fits in here you can feel it all in one he wakes up in the morning didn't in wakes up and slept wrong got a crick in his neck and he mones his wife says what's wrong says a slept I got a crickum next to him. I'm sorry, honey. He said, I'll be fine. But all day, everything he does, he feels it. He changes lanes and looks in his blind spot. And there it is, tugging in his neck. Picks up a briefcase. There it is. Sits at the office, working head down at his desk. It's bothering him. So he stands and walks around. He feels a little better. And then that starts bothering him. So he sits somewhere. He's up and down all day. He drives home. Same thing in the car. He walks in his wife's and said, "How's your day?" All right. But you know, this thing in my neck is bothering me. He says, "Well, honey, maybe you better go to the doctor now. I don't need to go to the doctor. It's not that kind of injury." He goes to bed that night, wakes up. Now it's day two. Moons. "Wife says what's wrong?" He says, "I was hoping to be gone." Well, it'll be fine. He goes to work. All same thing all day up, down, sitting, blind spot. Whatever he does, it's there. It's with him. To one degree or another, sometimes low, sometimes more intense, but it never goes away. And now it's starting to get on his nerves. He's starting to put him in a bad mood. But you know what he doesn't do? He didn't call him sick. It's not that kind of injury. You know what else he doesn't do? He ain't walking around holding his neck on, "Ah, ah, ah, ah, people say your big baby get over it." No one knows, but his wife, I mean, they talk about things. They're married for going to say. But he comes home in a bad mood. This is day two. "Wife says, and he's in with the kids and he's being cranky and says, "What's the matter with you?" "Sorry, sorry, this thing's really, you know, getting on my nerves." So maybe you better go to the doctor. This time maybe a little less worried about him and a little more. I don't want to crank into house. So now I want you to go to the doctor. I'm sorry. I'll get in a better mood. And he does. Wakes up day three, wife's in brushin' her teeth and she hears. Hallelujah. She's what? He's gone. Well, you know what my clients injuries like? Just like that. But there is no hallelujah ever. Now when you lay that out with the other steps in the putting an end of belittling pain, all the sudden the jurors go, "You know what? This is a big deal." Because all of them have woke up with a crick in their neck and by day two or three thought my gosh, even though they're carrying on and no one knows, they're going, "Wow, this thing's really bad." And they remember waking up the fourth day and it was gone and they felt like hallelujah or the third day or whatever it was. And then they think, "What if that happened in some of the me?" And it never went away. Now they go, "This really is substantial. A lot of health got taken." And then you add in thrust into her life unnaturally. Now suddenly they realize it didn't like, "Hey." You know, I fell out of bed. Someone did it to them. And now they go, "By God, that is deserving of a very substantial verdict." So you have gone through all of the putting an end of belittling pain and then when you hit the dignity of damage is now they understand it's a big injury. Step two, they go, "And you know this whole idea of establishing a dollar amount for that injury is the right thing to do." This isn't a money grab. Anything else would be in utter injustice. And we don't do that in America. And I'm sure it's not going to participate in injustice. And I'm not going to participate in a half justice because half justice no justice at all. Maybe they've heard Martin Luther King. But you have and you will deliver all that and they will understand that. And when the dignity of damages are established they're going to feel good about doing the right thing. And then you will roll into a damage argument in which you believe it. You look them in the eye about it and you validate it with rational, reasonable, measuring sticks. And when you sit down you can rest assured, assuming that you've been effective in getting rid of the folks that had biases and were never going to listen to that, that there is a high probability. You will have stood up for your client who came to you and they couldn't stand up for themselves and you've done it with courage, dignity, respect. And you will have gotten maximum justice. So you all take care and I look forward to our next one. [Music]