S4 Ep4 - The Audacity to Ask for Full 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 K Mittnik at forthepeople.com [Music] Hello again everybody. I want to pick up where I left off last time. This is the last piece of the maximum damage matrix. First as you recall just to recap was putting an end to belittling pain that you can't see. That's specific to like a herniation case. The rest of this is not specific to that. It works in any kind of an injury case. And the second step was the dignity of damages where we remind the jury and teach the jury that what we're doing is true civil justice and we ought to do it proud. That final step is having the audacity to ask for full value. Again I mentioned it last time I'm going to reiterate it because it's so important. I don't want anyone to think by audacity I mean show off. Nothing can be further from the truth of what I'm trying to communicate. You look up audacity. I have. It means courage. You have the courage to ask for full justice. No discount justice because it might be a little easier rolling off your tongue. In the full value of these cases is established not by what someone told you they were worth who didn't know what they were worth or thought they knew and were off the mark badly. They are worth what it would be if it was you and not a scent less. And I and you got to do one last piece to that when you assess what it'd be worth for you do it looking forward not backwards. What I mean by that what if someone came to you and said we're going to do this to you and we wanted to discuss what's a fair and reasonable amount why you still had a choice in the matter. Do it from that perspective because if you do it from the other end it's already happened and your picture and what if someone was talking to me and I had this problem this injury it's so easy to fall back in those pre-arranged unfair boxes we're all been mired in. And what you'll do is just push it to the top of the range but you're still in the box or maybe you just poke out of it a little. I want to break the box and throw it out. It's trash. And the best way to do that is to say what would it be worth to me if I still had a choice in the matter and it hadn't happened yet and I was going to have to agree to the fair and reasonable amount to let it be thrust into my life. Now you'll get the fair and reasonable value. That's what happened to your client and that is the proper perspective for assessing the value. When you've done that you've had the pep talk with yourself because look when you have the audacity to ask for full value it's going to be more than you used to would up. In most look there may be cases not. You may have already been there but I can tell you from experience a lot of times you're going to be asking for not a little more, a lot more. And not because you got greedy not because you learned a system would let you pull off a fast one but because you realize I'm not going to short my client I'm not going to voluntarily participate in shorting my client from what they ought to get and I have a fresh perspective and an awakening and it has invigorated me to do what's right. That's the audacity to ask for full value. But in order to do it you got to have two things two things they're essential to this you don't have and you can't do it. I shouldn't say that. The second one there places you might not be able to do and you can still do it. First one first sure you can't do it out. And that is you got to believe it when you deliver it. If you stand up and say you got a herniated disc case and you stand up and give them a number of three and a half million, four million whatever your number is that is fair and reasonable for the facts of your case and the circumstance of your case is these numbers aren't predetermined. They are case by case basis really rolling up your sleeve and look at them with fresh crystal clear fair eyes. You get up and say it and you're squeezy about it you think that jury doesn't pick up on your body language something in your tone some twitch in your face some you want to make eye contact. I guess their poker players can pull it off but they need to go to Vegas instead of my courtroom in your courtroom because we are poker players we fight for justice we aren't mercenaries this is a calling so you need to believe in it or don't do it but don't say well gosh that sounds high to me. I don't believe in it so I ain't gonna do it so I'm gonna discount it you only do that when you done the hard work of making sure that that number is right or wrong and you don't judge it by what's my knee jerk first reaction because it's all based on the unfairness that we've been steeped in for years we're breaking out of that so you get past knee jerk reactions don't give up quickly and you've done the math you've worked the problem you've come up with that number and that's what the number is and you got there with some mathematical measuring sticks you don't just run from it because in your initial reaction you work the problem you look at it you stare at it you think about it you have the talking to you to yourself what if it was me prospectively not looking back and if at the end of all that you still go I just don't believe that's just too much well then forget to say don't do it but don't just cut and run when you off your knee jerk work the process you know it's like going an AA meeting work it and I suspect your heart's gonna change when you really think about what if it was me and you stick with it and you push away how much of this is coming from stuff from my past that was wrong that's making me feel that way I can tell you my experience what you end up doing is I don't just kind of believe in it I didn't just almost get there you believe in it big time so give your client give yourself give the fundamental belief in justice that we all care about the chance when you believe now you're ready to deliver and you have to believe because a jury can tell but when they can tell you believe you've taken the first giant step to be ready to deliver it with the audacity to ask for full value because you've already done the hard work of establishing the principle that assessing amounts for what was taken and recognizing it fully is American justice and something to be proud of and you've already taken the steps if it's one of these injuries that you can't judge a book by its cover of just squashing and putting an end to them belittling that as if it's no big deal because we can't see it so you've taken a lot of steps and you're almost there you are now into the audacity to the ass phase and you've done the hard work of talking to yourself and breaking free and and judging it from the lens of what if it was me looking forward and now you believe whatever the number you came up with you believe and you came up with that not pulling it out of there you came up with it by using damaged models yourself internally before you deliver it of the jury so now you're ready there's one more step in last year in a venue and there are a few of not many that won't allow you to use damaged models or some of them like you can't use per diem well obviously I don't want to tell anyone jump up and mistry your case follow your law but most places you can so I want to want to lay this out for you you pick a good damaged model for one reason validating the two key steps to the audacity to the ass phase three of the maximum damage matrix is believing and validating. So now you've laid all this out, you're looking to the jurors and I just say now I want to talk to you what's a fair and reasonable amount. My client, I'm going to start with a per-dem damage model and I'm going to abbreviate this. My client, you heard, has 30 years left of life expectancy. If you're going to live longer, she can live less. Nobody knows for sure, but these are a huge database of information that leads that and it's the best evidence we got. And she lives one moment by moment, hour by hour. People would love to be able to just skip ahead when they're having a bad time, skip a day, skip a week, skip a month or a year sometimes. That's not the way life works. People got to live a life moment by moment, hour by hour and she lives with us all the time. In fact, it even interferes with her sleep. She can sleep, no one says she can't sleep, but she's tossing and turning because it's hard to get comfortable and stay comfortable. And lots of the times it's low-level pain. It's more of discomfort, pilot light pain, but she's making many choices all the time. Do I do or don't do? No one, I'm going to go from pilot light to flare up if I do. That's her new life. That's her new baseline. Making all these many choices you didn't make before and this was thrust into her life as we talked about. Naturally by no fall of it on didn't just happen and she's going to live with that the rest of her life. And if you were to take merely $10 an hour, spread over that significant period of time, that comes to a million and a half dollars, $1.5 million. And you look them in the eye, I didn't do the math on that, whatever it comes to. And you look them in the eye and you say, "Look at them all, let it sit a minute." That's a lot of money, but that's a lot of hurt for a lot of time. If my client had just had a little sprained strain like they say that healed up, we wouldn't be talking about nearly that amount. But that's not the evidence in this case. There were folks that said, "Look, I'm not comfortable with a significant number like that. I don't care what the evidence says, but that's none of you. Every one of you gave your oath and you were. If the evidence was there, you would have no hesitation. And now you know why we ask those questions because the evidence is there. And I ask you, if any of you or one of your juror mates were to say, "Gosh, that's more money than so-and-so makes over X period of time," just respectfully remind them that's not the proper measuring stick under the law. That's not how we're supposed to look at this, how much someone else makes in a job. This isn't a job. This is health that was taken. And I say, "Do it respectfully because no one's going to come up with a measuring stick that's against the law on purpose." So do it gently and respectfully, but make sure we keep this. You come this far. Let's stay on course. Let's not let justice be derailed at the last minute. Let's stay with it. Now I'm going to sit down and save a little time for a battle. That's a powerful argument. That's a per-dem argument. And you'll see, if you've got 30 years, 40, 50 years life expectancy, then the numbers are going to be millions of dollars. I run it that way to myself. That's how I start coming up with the numbers. I've just gotten rid of them. "Oh, that's too much. We got to go last." "Well, why is it too much?" Because someone told me it was too much. The source of it was an insurance company. "You got to be kidding me." Not it. Yes. In the past, no more in the future. Not today. So that's the process. We validated with a damaged model and we started out by believing it. We laid all the groundwork and the other steps. And you know what? Even if the juror goes, "I'm not going to do that." You know what they're not going to do? They're not going to turn on you and go, "All right, now I'm going to find against him and his client because they had the audacity to ask for that amount." Why would they do that? As long as you believed in it and you validated it, you know what they're going to do? Well, look, he believed in it. She believed in it. And actually had a basis for it, made sense. It's more than I think I'm comfortable with. But you know, I see how they got there. Well guess what? What are they? They're not going to suddenly find against you and your client because you had an honest disagreement on valuation process. You know, by this point in time, if you're in the fight, they've already respect you and believe your clients heard. They don't believe that. None of this matters. And they're not going to suddenly say, "Well, let's just screw them over because we have a little disagreement on what it is." And you know what? If you're checking out and asked for last, the conversation is going to, they're going to come down from there too. And they're going to end up instead of you're going to say, "Five hundred and they're going to go to 200." And you're going to really a short change of client. If you started at the million fiber, whatever the numbers added up to, and they come down some, where they end up is certainly going to be closer to full and complete justice. Maybe you will still be disappointed because you'd meant it and you believed it. You weren't making it up. And there's going to be some dissuperment that I'd rather be disappointed that instead of coming back at the full amount, they discounted 20%. Then if I came up because of my own queesiness and lack of courage, something that started too low and they added 20% discount from there, so have the audacity. You're doing the right thing. This means you're brave. What's another real quick here? I don't want to run too long with it. Let me just real quick give you another damage model real quick. I'll give you a couple others. You can use multiples of economics. What if you have not a lot of life expectancy, but you got, look, past medical expenses and futile medical expenses that up to 500,000? Will you use the multiple of that? You say, "Listen." Now, you're the same thing. Standing in front of the jury, you're ready. You're using a damage model. Now I want to talk to you what's the fair and reason about for the non-economic, the pain and suffering, the quality of life damages. Well the doctors in this case just to come in and out of the life, my clients life briefly, they're just there quickly in and out and to partially make things better for the treatment and the injections and the surgery. Just partially didn't fix it, didn't cure it because it's incurable. It's forever injury. But they did improve it for coming in for short period of time doing their best to make it somewhat better. That's what that value of that is, 500,000 dollars. Well that's, that pales in comparison to what it is to live with this around the clock. That's why oftentimes people will use a multiple of five to ten times that. Five to ten times what those expenses were just to deal with this and the potential, then those future expenses that are likely. And if you take five to ten times that, that's two hundred, two point five million to five, two point five million to five million dollars. Now that's a lot of money. But that's a lot of hurt to be thrust into someone's life by no fall to their own. Now I left out a lot of hurt over a lot of time because we don't have a lot of time to work here. So that's a multiple of economics model. It let's say you've got someone elderly, I'm going to do two more quick ones. In bear with me, I try to keep these short, but this, I want to finish this up and we'll wrap up. If someone's elderly and you don't have a lot of time and you don't have a lot of economic expenses that you can use as a multiple, that doesn't mean suddenly their injury is not worth much. That's a horrible injury. Why? Because all times not equal. And I talked about this, I believe in one of my earlier years of sessions of these podcasts in the past, but I want to plug it in here in this new context. So if you have someone elderly, then you use the all times not equal and you tell the jury. I want to talk to you about my client's injury and what's a fair and reasonable amount for it. But we got to keep in mind the context. All times not equal. When people are younger, a lot of times they wish they were older. They're not worried about time being precious. They want to skip ahead and be grown up. An adult, an adult right. They want to be older and so their career is further along the line. They're more experienced. They want to be older so they have a family and kids. Whatever. Do you know what? When people are at the other end of the spectrum and times running out, time is valuable. not treated as an afterthought or something you'd like to skip. Every moment matters. It matters a lot. Anything of value, the less of it there is, the more value it is. There's nothing more valuable than life. It's the ultimate, most precious thing humans have. When it's in scarce supply, it is of great value. That's why if you go to a movie and there's a deathbed scene, it's so gut wrenching because the ultimate scarcity of time, that's why when people get elderly and they've had an argument and they say they're sorry, it comes from the heart because there may not be another chance. That's why I love you's when you say goodbye. Our profunctory, I love you, it's, I love you, honey, because it could be the last time you say those words, they matter. That's why sitting on a couch with someone elderly. You can talk about nothing, but you value the time because there may not be another time sitting on the couch chatting about nothing. So please, I ask you to bring back a verdict that recognizes the magnitude of dropping into this into my client's life as this extra burden when she was already carrying so many other burdens at a time when every moment matters and now those moments were lived with this completely avoidably. The defendant just done their job right and I suggest in that situation anything less than a million dollars for the time and the impact of taking that piece of health from her that was precious time and the precious bit of health that was left, anything less would simply be unfair to someone elderly like that whose time was running out. And I know that's a lot of hurt. I'm, excuse me, I know that's a lot of money, but that's a lot of hurt at a time when it really, really hurts. You feel it? You feel the difference? Let me give you, I'm going to give you one more. This comes out of the talking to that I did to myself and again some places may or may not permit these for going to say check your law but I call it the experiment model. When someone comes to your client you're talking to the jury. What if someone came to Miss Jones and said we want to do an experiment? We want to cause this entry to them and then follow them over the rest of their life to see what kind of an impact it has and we'd like you to agree to do it. But before we do that we need to talk about what is a fair and reasonable amount for you to go through it and we need to have full disclosure and then you just start laying it out. So the first thing's going to happen, someone's going to ram you from behind in a car. You're going to feel some pain. You're going to be hopeful. You're going to feel like gosh I'm really stiff and soaring but it's going to get better and it's not going to get better and you're going to be disappointed so you're going to go to the chiropractor and get some relief and you're going to think okay that'll help and you're still hopeful it's going to go away but it doesn't and finally the next thing is going to happen to you just for full disclosure misjones. Is there going to then say we need to get some MRIs and make sure it's not more serious and you get that news. Uh oh, this isn't just a strange strain. You got a herniation and you're going to go oh my goodness I wonder it ain't got better. What's that mean? It's beyond me I want to send you to spine specialist a spine surgeon, a neurosurgeon, let him look at it. I'm going to send you to someone who looks up and so miss I want to tell you miss Jones that's not the end because once you get to the spine surgeon they're going to say less trice than what we call conserved at treatment but a little more aggressive. I'm going to send you to pain management and you're going to get some injections. So that's what you have to look forward to miss Jones you're going to stick a needle in your neck and then you're going to inject it's going to hurt like the dickens but you're going to come out of it feeling better and you're going to go my goodness it's been three weeks I feel so much better and you're going to say I'm finally at the end of this but I need to tell you it won't be the end because it's going to wear off and the next time you get that needle stuck in your neck and the pain that goes with it it's only going to work for like a day and you're going to be bitterly disappointed. So you're going to go back to the doctor and that's not going to be the end of it because now the doctor will say look this is permanent it's not going away I'm sorry and you're going to lose hope of a cure you just say but we can put you through a surgery and it may work it may not it's dangerous but if you want to I will do a surgery and it may give you some relief and you're going to decide after putting it off for a while look I need a break I got to get some relief I'm going to have it and you have the surgery and then and you walk them through all of the recovery and then you say you're going to be hopeful and you're going to feel better because the burning down your leg is going to have gone away or the burning down your arms going to go away but you can still have pain and discomfort and now your next step from the hardware they put in your neck but I got to tell you miss Jones that's still not going to be the end of it because now as time goes on it's going to start likely going to get worse you're going to start having arthritis setting because you got this hardware in your neck and the joints above and below are going to be at risk and you may very well end up with having a more surgery because of something called adjacent segment disease and as time goes on it's going to impact you more and more and when you're 60 you're going to feel like you're 80 with it and then it's going to keep going now that's what you have to expect miss Jones now who would start that conversation with her at less than $3 million. Now in fairness no one in the right mind would agree to do that voluntarily at any price but no one ask her permission this was thrust into her life so it is a fair and reasonable measuring stick now I know that's a lot of money but that's a lot of hurt for a lot of time. I hope you're feeling it folks I hope you're feeling the justice of it I hope you're feeling the power of truly standing up to our full height and not letting insurance industry and others shrink us and I look forward to talking to you next time.