S4 Ep7 - It’s the Little Things

[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 talk to you about something that's really important this time that we all deal with in a lot of our cases whether be slip and falls, trip and falls, car crash cases and it's the injury that does not stop your client on the outside from carrying on with life because their pain is on the inside and you can't see it and it's not the kind of pain that interferes so much with the doing as it does with the experience of doing and by that I mean that they still do most of what they did and so they're still active but they're having to make a bunch of many choices all the time. That's what I mean by I call this it's the little things and by it's the little things I mean suddenly somebody knew to their life they didn't have to do this before this crash or having to make all these little many choices to do or not to do something knowing there's going to be a price to pay if they do them and so from the outside they look like look you still jog you still unload you know you haul from time to time you mow the yard you still you know can go out and play wiffle ball with your kid the you can still you know pick your kid up you can go and arrive you can even have him for a bit smile you know you're carrying on with life we kind of hit on some of this in one of the earlier podcasts but I'm going in a little different direction here in that how do we bring these injuries to life in a way the jury can truly appreciate the magnitude of what was taken in the way of hell and the way you have to do it is we have to stop the tendency to focus on the big things I'm not saying ignore the big things but we don't want to exclude all these little things because it is the little things that add up to a lot over time a day of many many many many many choices to do or not do and to pay the price when you do or pay the price for not doing because it's affecting your quality of life one way or the other you're either sacrificing the experience that the actual doing or you're going ahead and doing it and paying the price with the physical pain that's elevating because those kind of injuries leave what I call pilot light pain it's pain that's always they're flickering it never goes away it's like on an old hot water heater or gas stove they had that little pilot light and it was always there flickering it never went out and it will flare up but when you turn it off it doesn't go off it just goes down and flickers and this kind of pain is like that it's not pain pain it doesn't prohibit you from doing or make you walk with the limp or a cane or a wheelchair you still doing you look normal doing but there's this other chapter your life that this other film that's going on of tape of your life under the surface where you're making all these choices and you're paying a price one way or the other a price and not doing something you otherwise would have or doing it and having the flare up instead of the pilot light pain and ended up on heat and pads or just dealing with it and it was thrust into their life unnaturally by no fault of their own suddenly they weren't living their life that way well that's a big deal now how do we bring that big deal to life so it doesn't look petty or small it's all about preparation and awareness you have to be aware first and foremost of the magnitude of value to someone not to have to live with that and therefore for serious about the business of doing justice then we have to be able to explain to a jury the magnitude of the value of what was taken so they can bring back a verdict that is evenly yoked with that value that recognizes it fairly fully and reasonably so how do you get there first you got to remind yourself all the little things matter because your clients not gonna naturally talk about them why when you think about it a second somebody's now living with that all the time but it's not really stopping him from doing do you think they want to focus all the time on I just had to make another decision I just had to make a decision I just had to not do I just didn't do I just didn't look I feel if they thought about all those hundreds of choice A or B in which neither of them is good it would be extraordinarily demeaning frustrating and depressing so you suppress it naturally and aside from suppressing it for your own mental health they also are unaware because you do it so dang often it becomes second nature it becomes a baseline and when you come second nature in a baseline it becomes unrecognizable unless someone reminds them to look at it it's like do you recognize your breathing go meditate and suddenly you're watching every breath so you can focus and quit thinking about all your stresses and worries and all of a sudden you realize God all these breaths you think you think you notice your heartbeat no you can put your finger on your wrist and feel it you think you walk around and feel it no it's too routine go get a sonogram or one lose echo cardiogram so they look at you and watch your heartbeat it'll freak you out you go boom boom boom you realize that's all the time if it stops I die you go that's the same thing these people don't want to focus on it and it becomes routine so it's unnoticeable so how do you get at it give them a homework assignment have your client come in and explain what you're looking for have the same conversation I just had you're not coaching them to make stuff up we don't do that you're giving them examples of what you know in your own life or from others clients you represented so they can use that as a model to know what to look for and then give them a little book like a mole scanner a little some kind of note book and give them a take home exam give them an exam a homework assignment say for the next week ten days two weeks whatever I want you to carry this with you and every time you don't do something because you don't want to pay the price write it down I don't care how small every time you do do something and pay the price write it down every time it enters into your mind your frustration because there was a little bit of an awareness of the impact broad impact not intense impact it's not like a sprained ankle that you can't get around because you got to have crutches it's not that kind of pain it's a much lower level pain but it's persistent it's there all the time every time you think about that every time you think what if that person hadn't done this and I was back to the way I was every time you miss the way it was before and wish you had it back note it and all the little little little choices that you're making and the impacts and bring them back to me and then when you get that list you go through and decide which ones are the most powerful and not you call through it then you have your client hand write out everything on the list that made the cut that you think really makes the point this is all pure honest this is your clients words not yours you're just guiding them and that your job to not just be their lawyer but your counselor so you guide them to where you now have that list now when they get asked at the deposition how's this impacting you they won't say well I can't golf anymore and I used to love snow skin I can't do that because you know what the follow up question is going to be how often did you go you know most Sundays how long did you go you know I'd probably be on the course for half a day how often do you snow ski well you know kind of depended on family and finances and but you know we try to go every year but probably more often every other year well number one nobody on the jury gives a damn about your client can't golf anymore and can't snow ski anymore number two you have just diminished your clients injury down to next to nothing because now we're once a week once every two weeks for a half a day that's their damages and once every year or two for a week and arrest the time it's hunky-dory back to normal well nothing could be further from the truth but when your client goes to the depot and is asked how's this effect and you guess what? They're going to remember those big things. Why aren't they going to remember all these little things? Because people don't walk around and think about the little things. They have to spend some time with that homework assignment thinking, not to gin it up and make it up to recognize it, to drudge it up so they can see it. And you wanna tell them, be kind, you don't wanna affect their quality of mental health. You wanna say, look, you can go back to being as oblivious as you can be to all these choices. Once I just need you for a week or whatever the time frame. And then for gonna say, I don't want you focusing on it anymore. But now you've got the data and now you get 'em ready. Hey, got their little list. I don't see anything wrong. That's your decision. I'm not gonna advise you on that. Some people would cringe if we're bringing the list to Depo. I wouldn't, I just let 'em bring it or let 'em look it over and be ready. And just attach it to the Depo. Yeah, I understood you gonna ask out, impact me. And I thought I had an obligation to give you a full and complete answer, not just off the cuff. And so I've spent a little time thinking about it. Here's some of them, but there are a lot more, but here's some of the things I thought about. Guess what? Or just they don't bring it. And they just do it 'cause you've talked with 'em. They came up with the list. You modeled for 'em the kinds of things. Let 'em get in there and start listing. This kind of stuff in the Depo. How's that impact you in this, the arrogant lawyers at? I'm like, we got your, we got your Facebook page and saw you at Disney and you, you haven't forbid you smiled and you're on a ride and we saw you walking and we actually saw you jogging and we got you, you're not hurt. Well, guess what? I'm gonna smack the smirk off your face when my client starts up. Well, here's how it impacts me. And they don't wanna be hammy. They don't wanna be theatrical. They don't wanna act like it's the end of the world. It's just matter of fact, business like given an honest answer to a question they had a right to ask. Well, I mean, it's things like, my son loves me to pick 'em up. But he's getting a little bigger now. He's four and if I pick 'em up, I'm gonna pay a price. I know and I decide. He puts his hands up and he smiles and that look on his face. And if I know if I pick 'em up, he's gonna smile bigger and giggle and it melts my heart. But you know, I look down and I go, am I gonna pick you up today or not? I'm feeling pretty good in my own busy day. Come on, we get up and swing around. Now, I'm probably gonna suffer for hours during the day, maybe longer, maybe days, but it's worth it. Or I go, I'm already not having a great day. I didn't sleep right and it's already flared up. I just don't wanna make it even worse than I'm gonna have that thumping headache. So I don't. I decide to lean down and tickle 'em. Or I go, I got a busy day. I just don't want that increased flare up going on. Or my son wants me to go out and throw the ball with him and he likes when I throw that baseball hard. You know what, am I gonna throw it hard the way he loves it? Or am I gonna throw it soft and have him tease me? Dad, you could throw it harder than that and I know I'm disappointing 'em. Same kind of choices. I like to jog. Am I gonna go really slow and feel like an old person? Or am I gonna blow it out? I love to blow it out. Well, you know what? I've had a frustrating day. I've gained a few pounds. It's Thanksgiving. I'm gonna blow it out. But I know I'm going straight in and I'm gonna get on a heat and pad for 30 minutes and that may or may not bring it down. Or I go, no, I'm gonna just take it easy. I'd like to, but I'm gonna take it easy today. I'm just not up to it. I change lanes in my car and I gotta swivel differently and turn at my torso 'cause if I turn my neck, woo, that can go south for me. But I gotta look at my blind spot. I get out of bed different. I used to just hop out. Now I kind of swing around, put one foot on the floor, the other foot on the floor and put my hands on the side of bed and push up. Why? 'Cause if I swing out, awkwardly it can set it off for days. By the way, I sleep different. I used to get in one position and I'd stay there most of the night. Now I'm flip flopping all night. If you had a granny cam and ran it fast, I'd look like a flounder 'cause I can't stay in one position long it starts bothering me. So I gotta get comfortable and then re-comfortable, then reposition, then re-comfortable all night long. I actually bought a toothbrush, electric because believe it or not, if I'm brushing my teeth vigorously and look a little like my wife says something I look over and go out and I'll catch and now it's days of it. Flare it up. And when I find with electric toothbrush, I hardly ever do that. Look, you can go on and on and on folks, but when they start listing those things in depot, and it comes out sincere 'cause it is their life, they realize this person's life has been changed. It's not golfing every now and then and it's not snowskin once in a while. It's a big deal. And now they're going, oh, I came in here to mock 'em and there's gonna be no mocking. That was pretty, a jury's gonna pay attention to that. And they are. That's why it works. That's why you need it. You're never gonna get it. If you don't think about it, then talk to your client about it. Then give them the homework assignment and then get 'em ready to tell about it. Now of course if they're sloppy on the defense and don't ask the right question and just say something like, you know, can you still then answer it? They don't need to volunteer. They can hear it a trial. But most of the time they're gonna ask one of those broad questions. And those things really, really matter. And it's not just a herniated disk case. I see it all the time in wrongful death cases. If you don't go through the same process with your client and give them the homework assignment, some a daughter lost their mother, grown up daughter and their mom dies. And they got a wrongful death case. You know what they're gonna say? She wasn't there for my first child and she wasn't there when to walk me down the aisle. And I'm not mocking that. That's a horrendous loss. And it stays with them forever. But do you really wanna diminish it down to two events? When that then I've lost both my parents. I know that doesn't come close, close. And I lost them in their 80s. And I was a full grown person. That doesn't touch it. But how do you get them to touch it? 'Cause nobody wants to talk about it and think about it. But you gotta look into the darkness to do your job and you gotta help them look into the darkness temporarily. And all of a sudden after the homework assignment, when they get asked, tell me how the loss of your mother's affected you. Well, you know, you get things like, you know, I wake up every morning and I swear it's been a year and a half. But every morning I have to remind myself my mom's not there and I go through it. Not like the first time I heard it, but I go through it again. It's not like I know it. My brain hasn't gotten there yet. Every morning I have to go, oh, mom's not here. And it's just like, oh, it's just a bad way to I start the day with this sadness that seeps in. And it takes a while to shake it off. I shake it off. But you know, and then I can't tell you every time something goes wrong and you know what it is in life, things go wrong all the time. Nobody could comfort me like my mom. And I always want, and I can't have that tenderness ever again. Every time something's wrong. When things go right and think, goodness, life's right a lot too. There was no joy like a mother's joy. She's not there to celebrate even the little things. How many times do I reach for the phone? And I go, and it's bittersweet 'cause there's a pleasure to reach in for the phone thinking about those calls. But there's a bitterness to going, there's no one on the other line. And I guess that in stink of fade, it hasn't. I still reach for the phone. Cooking meals. All those recipes for my mom. I smile and then I want to cry. I can go on. I don't need to. Most of you've had somebody lost. Why would we ever let our client miss the opportunity to educate the coldhearted people on the other side or trying to diminish it? You're a grown-up. You got your own kids. You lost your mom. Get over it. They wouldn't get over it. They haven't gotten over it with their mother. Why would we let them shrink the enormity of what was taken from our clients? So the whole purpose of this is to get the point across. Whether it's a herniated disc, whether it's a wrongful death case, whether it's an amputation case, the true loss is found in the little things, not the big drama things. So I'm asking you for your sake, your client's sake for the sake of justice. Have the courage and the wisdom to get past the big drama and get down into the daily routine where the true impact on human life lies. Take care folks. I'll talk to you next time. [MUSIC]