S4 Ep5 - Trip & Fall, Open and Obvious

[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 again everybody. In this episode I want to talk to you about tripping fall cases where we have open and obvious defense. They're coming along saying you ought to be looking where you're going and if you had been you'd have seen it and so it's your own fault you clumsy oath. We know that defense and I'd actually developed this in a case I tried with my partner Matt Morgan and we had a lady who tripped on a sidewalk that had been pushed up by some roots that had pushed it up and it was on it wasn't a like a county or a city sidewalk it was in a business complex so it was privately owned and this rise had been there for a couple years and there being complaints about it and the owners had not gone out and fixed it. They hadn't even spent a few pennies to go spray it with some exciter colors like red or yellow to make it more obvious. On the other hand this happened in broad daylight. Sunny day and this thing was sticking up I bet you five inches. I remember when Matt showed me the sidewalk lifted up the picture. I remember my first reaction was uh-oh they're going to have be fighting hard for heavy comparative and who knows they may be able to pull off a win and I did what always do I said cut it out Mitt Nick I believe in our client our clients hurt these people knew about it and it's not fair for them to blame her and it's doubly unfair if you fall into that trap so settle down and think about it what about these circumstances will prove to your satisfaction because if I don't believe it I ain't going to say it to jury so how do I first convince myself it was 100% their fault and then how do I convert that so the jury can understand it and reach a just result and what I'm about to share with you is how we got there because we had a significant injury our client broke a bone in her face and ended up with loss of a sense of smell and I didn't know this until that case but 80% of your sense of taste or more comes from smell so when everything tastes like cardboard now of course they contested everything they didn't do anything wrong it was all our client's fault she wasn't really that badly hurt her smell must have come back you know just across the board defend everything but this I want to talk about and focus on was the open and obvious defense which was their big go-to defense and here I want to start you with what I had to say to myself and then we just converted into a jury discussion and this is what changed the whole thing for me and it's a principal I suggest to you in every time you face something where it looks like whoops we got a problem you buck up and you say this to yourself I believe in my client is right I believe they're trying to exploit this to reach a wrong conclusion what is the right conclusion here and to get there it almost always comes from an intense focus on the circumstances so I started thinking about the circumstances and I realized at its core what they're saying is y'all to be looking where you're going and the more I thought about it the more I realized well that depends on the circumstances if I'm walking through a junkyard with a bunch of rusty metal and old nasty mufflers and broken glass maybe even a possum jumping out with his teeth gnashing at me if I'm not watching every step like a hawk like I'm walking through a minefield and I kick up against some rusty metal and get tetanus it's on me because under those circumstances I better be staring at my damn feet but let's change it to a sidewalk it's totally different if I'm walking in downtown Orlando to lunch and I'm staring at noon time at every step at the concrete I'm going to bang heads with somebody else especially if they're doing it why it's called a side walk because it's supposed to be safe to walk on you're not supposed to have to be staring at every step and if you did it be dangerous that's why we walk down the street and we're looking in to see if somebody of the person we're looking for in there eating or there's a new restaurant how's it look while we're walking or we're talking to our friend and we're not looking we're looking over at them and they're kind of making an expression or on our cell phone calling somebody returning a call and walking whatever we're not doing anything wrong because of the circumstances are different and then another thing came to me in this process that I communicated to the jury but first had to believe myself I realized one of the critical circumstances was this was one of the rare times the defense had the burden to prove this was an affirmative defense that means they got to prove it and I thought well what is enough and what's not enough for them to meet the burden to prove and I thought well some people are going to think I'd have seen it other people are going to think you're client ought to have seen it could have seen it well you know what my client could have seen it you know what someone else would have seen it so why didn't I go up's back to square one because the circumstances showed me the light it gave me a pathway and those circumstances since it was their burden to prove I said what do they have to show what's enough what's not and I realized it's not enough to say you could have seen it it's not enough to say someone else would have seen it it's only enough to say my client did something wrong she acted unreasonable and there is absolutely nothing unreasonable or wrong about walking on a sidewalk and looking at other things whether it's a bird flying by or a motorcycle making a ruckus going down the road or a turtle they're looking at and worried a car is going to hit them and once it came to me then we were there because I readjusted the focus to them having to prove not that someone else would see it not that my client could have seen it but that my client did something wrong under the circumstances that she acted unreasonable and she did not act unreasonable and I did one other piece in jury selection I asked the question that I always ask in a trip and fall or slip and fall how many of you feel is someone trips and falls or if it's a slip and fall just change the term how many of you feel is someone trips and falls they must be at least partially at fault no matter what the rest of the evidence shows you're just telling us in all honesty you're going to conclude you trip you fell you are going to be partially at fault automatically and we're not in all likelihood ever going to be able to convince you to the contrary and if the defense is trying to prove fault on my client your honest answer would be they've already won that part how much is up in the air but they're going to have at least some do you understand my question how many of you feel that way and are your beliefs such that you cannot assure the court that you could put them aside and you have a right to your beliefs just because you got a summons and came here to doesn't mean that you surrender your beliefs you have a right to them your job and duty was to show up and tell us the truth now how many of you feel that way and you get those people for cause and once you get rid of those folks and by the way anyone feels like that was probably biased against personal in your cases in general so it is a great way to get a level fail playing field. But once you've eliminated those with that kind of a bias against an injury case, particularly a trip and fall or slip and fall, the rest of this will work why because it's righteous, it's fair, it's common sense. And I ended that case by telling this jury in Rebuttal last words out of my mouth were, please bring back a verdict that recognizes what the defendant did was wrong. But also recognizes that my client, Miss Jones, did nothing wrong. She did not act unreasonably and a verdict that recognized the magnitude of what was taken from her in the way of hell. The verdict came back seven figures, zero comparative fault, zero. And it was not a fluke. This model will reproduce those results of zero comparative every time. And if it doesn't, and they put 5%, 10%, I'm going to be stewing because any mount was unfair. I hope you find that as helpful as we did and I look forward to talking to you next time. (upbeat music)