S4 Ep9 - Recognizing and Valuing What Was Taken

[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] Good morning everybody. I want to talk to you today about an essential part of our case and I want to focus on Vordire. We're going to be doing a couple of these or maybe three of these in a row on Vordire and I want to start with something that truly I consider to be one of the biggest biases that we face in these kind of cases and that is there are a lot of people who just really don't believe in the fundamental concept of a personal injury lawsuit and that is that we recognize and value what was taken from our client in the way of hell. And some jurors just don't believe in the premise of recognizing the loss of health within a amount of money equal to the value of what was taken. You know that most of those people are okay with economic damages that replace loss. Why? First of all it's just easy to add up and second of all they feel like okay if something was taken financially they ought to pay it back. You know you ought to fix it. So that part of it is kind of a no-brainer for these jurors but other people feel very suspicious when you switch over into the world of non-economic damages. The quality of life human damages you know we all kind of come under that umbrella of pain and suffering damages. A lot of people think hey that's a money grab or that's some way to profit off of suffering and people who feel that way really should not be sitting in judgment of a personal injury case. They just don't buy the principle. They tend to hold their nose at it and when it comes to setting the amount that is such an insidious bias because if they think the whole concept is hogwash how are they ever going to give full and fair amount. They're just not going to. So I have designed and this is hot off the presses I've just just done today a new brushstroke on it. I think it's number if I'm not mistaken number brush stroke at home but not alone brushstrokes my written one number 32 and what I am doing on some of these audio podcast brushstrokes the original brushstrokes is trying to track some of the written ones I've done during this shutdown because of the COVID because I find reading them is a value you can kind of study them and reread them but there's a different component when I get to talk about them and especially when I'm giving you quotes that I use with the jury so you can kind of hear what I emphasize and the cadence and the intonation and those kind of things. So while some of this may cover things you can read in writing off the written brush strokes I really think it brings extra value to be able to hear it in this audio form on top of that. So I'm going to take you through what I would do with the jury and what's it's going to start with a bit of an explanation to the jury in the reason is I think by putting the ultimate questioning context you're more likely to have a jury that number one understands what you're after and number two gives you a really candid answer once you've laid the foundation with my analogy that starts it out like the competition has the best pies I've covered that in the past I'm not going to cover that here I'm going to assume you know it if you don't you can find it in the first part of Don't Eat the Bruges my book there's it's laid out in great detail there and I there I also I think I did a written brush stroke on it and somewhere down the line I may do a refresher on it here on these podcasts but for now I'm going to assume you know it and it all it is is an analogy that teaches jurors really snap of a finger instantly how a subtle bias can have an unintentional profound impact on how the jury sifts through the evidence and their ultimate conclusion but right now I want to stick with this getting across to the juror that recognize in the value of what was taken and identifying bias for those that just don't buy into it and this does both you're going to see this will allow jurors you will get a head start and laying the foundation for how the process works of a jury assessing losses of an non-economic way and in the same breath you're going to be eliminating folks by establishing valid cause challenges when they're biased against it and here's how it plays out with the jury and here I'll start with the the little bit of what I call putting it in context explanation and then I'm going to roll right into the questions so now I'm talking to the jury most folks don't have a problem with economic damages things like lost income or medical expenses because replacing those losses fixes the problem however when we cross over into non economic damages things like pain and suffering or the loss of enjoyment of life that are often referred to as human damages some folks do have a problem with those kind of damages and a part of it sometimes is that money will not take the suffering away so some people think what's the point and worse than that some people feel like you know it's it it sounds kind of like you're trying to make money off or profit off of suffering and so I need to ask you a few questions about that that questions that deal specifically with how we under the law deal with pain and suffering in our civil justice system and here's how the law provides a remedy and the remedy is to recognize recognize the value of health that was taken by setting a dollar amount it's not about how much the injured person is going to get it's about how much was taken what's a fair value of what was lost in the way of health the money is not profit it's partial reimbursement for what was taken away in the way of health the person is never going to be made whole but this remedy the idea is better than the alternatives as we don't do I for an injustice where you go out and inflict the same injury on the person that caused it as barbaric we also don't just turn a blind eye to justice because that's no justice at all so we've come up with this remedy now having said that some people don't trust that remedy for pain and suffering they don't buy it and honestly they can't get behind it they feel it's really more of a money grab it's kind of like someone trying to profit off injury there may be some smaller amount they be okay with but when you start talking about full value for the amount of health taken and it can be a substantial amount some folks just say honestly I got a real problem with that and I'm going to have a hard time accepting that in applying it fully and completely so with that in mind I want to ask you because other people feel the system of recognizing this full value of what was taken in the way of health makes sense they can get behind it so let me ask you which group you fall in first group group a how many of you are in the I'm not buying it I cannot really get behind it group I got a level of distrust for this pain and suffering side of it how many of you fall into that group next and now you folks you I'm talking to you the audience you want to keep track keep a list of everyone raise their hand to the being in the category of I'm not buying it I can't really get behind it group then you want to ask the second group and you ask this way all right now let me ask how many of you are in the that makes sense And I can get behind it group. And again, you want to collect all those names. Then I'm talking to you now. We're going to go back to everybody in that first group and ask the following individual questions to everyone raise their hand in group A. And this is what you want to ask them, or words of these effects. So let me see by raising your hand. If this is correct, when it comes to setting the amount of money for pain and suffering, would it be fair to say you could not assure the court that you could base your decision solely on the evidence presented. Of course, you're not going to ignore the evidence. But because of your beliefs, because of those feelings against that part of the case, would it be fair to say it would likely affect the amount that you would be willing to support? So any decision would be based on the evidence plus those feelings having a limiting effect. Everyone who says yes to that, you want to follow up with. Would it be also fair to say that you could not turn those feelings off like a light switch? You cannot assure the court that you could put them aside. They likely will impact you. Now, if you're in a jury's jurisdiction that doesn't require likely, then you can say may impact you. Of course, you want to tailor this to make sure you're complying with the law in your state law for establishing a valid cause challenge. Now you've covered that topic. You've gone with the A's. You found out how many of the A's say I could not base my decision solely on the evidence presented because those feelings against this part of the case would likely come into play also and affect the amount you'd willing to support. You found those people and you've established that those feelings, those beliefs can't be turned on and off like a light switch. And they cannot assure the court that they can put them aside and be completely fair and impartial as to this part of the case. They try their best. But that's their best honest answer. Now you will have hopefully established cause on those folks who are, who are really against the fundamental part of your case. Cause we're not over there just established who was right or wrong. This is not a philosophical bait debate. We are there for one reason to get a remedy for our client. This is the remedy. People that don't believe in the remedy have no business on this case. They may be great human beings at great jurors. Go down the hall in a criminal case. Go down the hall in a in a contract dispute. Just don't sit on a personal entry case. It's an honor system. They ought not be here. And when you've laid it out in the preliminary questions like cherry pie, they'll be ready and primed to do the honorable right thing and acknowledge this without pulling teeth or at least most of them. But you're not quite done. There's one more piece. Remember we still have group B hanging out there. And these are the folks that identified just the opposite. They could get behind it. They did think this made sense. You want to confirm it so that there's been no confusion. And so someone didn't raise their hand to it being in group B because they thought A might make them sound unreasonable. So you need to look them in the eye and ask the re ask the question to establish for sure. No one slipped over in a group B that really belonged in a and also you're going to want to have them commit to being in group B not just by raising their hand, but by a personal commitment because you've asked them individually because in closing argument, you're going to remind them when you do damages about this conversation. So here's how you talk to each one of those individually. And again, there are two questions starts with this one. Now for everybody in group B. I want to ask individually Miss Jones, you raise your hand as B. Am I right? Okay. Good. Are you telling us that you will have no hesitation in returning a verdict for the full value of what the evidence show was taken in the way of hell? Yes. Are you confident in that follow up? Yes. And I just want to make sure are you sure are you telling us without hesitation that there will be no discount at all based on any feelings against this remedy. This remedy where we're recognizing the value of health loss. You will not discount it at all nor hesitate. Is that fair? Is that what you mean to tell me? And if not for going to say, I don't want to put words in your mouth. Just if you say, well, not really, then then tell me. And hopefully they're going to say, absolutely, that's what I mean. Well, you can rest assured. You feel good about that juror. If they say, yeah, I don't, I don't think I'll have a problem. You got to follow up. You need to say, I don't mean to be hyper technical. But that you can see this is really important question. Do you mind if I ask you a bit of a follow up? You said, you don't think you'll have a problem. Tell me what's going on in your head. What's the sound? What what's leading you? I can see you're taking my question serious. What's what's going on? Tell me what your thoughts are. And if they say something like, you know, I really do think there's a, it doesn't make much sense to me. And I'm trying to decide if I can get behind it or not. And you know, if it's the law, I guess I can. Well, now you know that person really belongs in A. So you want it gently and respectfully continue to try to establish a cause challenge. If you can't, you put them on a list with a big asterisk by someone may be a preemptory, probably a preemptory kind of depending on how things shake out. But I would come back and say, all right. And I appreciate it. Now, you are really taking this system, this process seriously. I can see your soul searching and I can see that you, you, you, you, you, you're honor and given the best. Honest answer is really in play. So let me just ask it a little different way. It seems like you're struggling with a little and I don't want to say it if you don't mean it. But that's my perceptions effort. Yes. And here's what concerns me. No one is going to be following you around, you know, checking on this and human nature. It can be hard to hold it down. You know, it can be like a rising tide as much as you'd like it to stay down. So you got more beach out there. It comes up because it's, you know, it's, it's your mind and your beliefs and your feelings. You have a right to can have a totally and unintentional impact, even though you try hard. So my question to you is given your feelings that you do have some hesitation. Would it, would your best honest answer be I do my best to put it aside? And I think I may be able to do it. But I really have some doubt in my mind. I'm not sure. I'm not sure my feelings could affect me in spite of my very best efforts. Yeah. Ma'am, I really appreciate your candor. So would it be fair to say that you're telling the court you could not assure the court. You could put those feelings completely aside. They could have an impact on you in addition over and above the evidence. Yeah. Okay. Thank you very much. And then of course you want to say now look, folks, is anybody else in the B category here? Says, you know, honestly, I feel like Miss Thomas just said I probably, you know, that would be an accurate answer for me. I'm struggling a little. How many would you say and just make sure assuming they're not, then you get everyone committed. Under oath without saying it. You don't want to sound heavy handed and then come close and argument. Let me just bring this full circle. You're going to be saying in closing argument to those that made the cut and belong on this jury. You know, listen, we're going to we're about to, we're going to be talking about to talk to you about the pain and suffering damage. And we talked about that we would be talking about millions of dollars. And some people that wasn't for we also just talked about the basic concept of some people felt like that, you know, that they just, they couldn't buy it. They couldn't get behind it. None of them are sitting here. Everybody here said if the evidence was there for a significant verdict, you would be fine with it. You wouldn't hesitate. And every one of you also said, I can assure you that I can get behind this without hesitation. That it makes sense to me this process of saying what is a fair value for what was lost in the way of hell, what was taken in the way of hell. And that it's not about how much they're going to get. It's about how much was taken. They're never going to be made whole, but we believe in recognizing here in court, even though it won't make it go away. We don't turn the blind eye to justice. We take seriously the idea that in this civil justice system, we are going to fully and completely recognize what is the value of what was taken in the way of help. And I'm glad we went through that process because you've now seen the evidence and you know why that was necessary because of the magnitude of what was taken from my client in the way of help. Now let me talk to you about that. So now you've got the full picture and I've approached this many, many different ways. But I believe this model in which we're asking the basic question of whether you don't buy it and can't really get behind it versus it makes sense and I can get behind it is a really good way to get to the root of this in a way jurors can understand it and give you honest answers using as the underlying foundation the concept of it's not about how much she's going to get. It's about how much was taken, what's a fair value for what was lost in the way of help. So I hope that's helpful and I look forward to talking to you next time. Have a good day. [Music]