Stand Your Ground

(upbeat music) Hello folks, my name is Jason Ingberg. I got my own podcast, but today we are hosting one for Morgan and Morgan, and we got the man, the myth, the legend Keith, who has probably in the Guinness Book of Records, the most trials ever done. He's spilling out wisdom. He's got a lot to say, Keith, why don't you give us a little bit of an overview of what we're gonna talk about in this episode, and then let's get into it. All right, we are going to, the other day, we talked about this same topic, and this is the third segment on it, in which we're gonna be talking about how to apply this surefire problem-solving process of mine that I call the wisdom of the wise. And it works on any kind of problem you face in a lawsuit, and it also, you can apply it in life. And the basic premise is, you take whatever the troubling fact is, it's called, I call it a fixed fact, and you put it here, and you say, here's the right conclusion that I know in my heart of hearts is the right conclusion. Here's the wrong conclusion that someone else is trying to sell, and you focus on the perceived problem until you can get an answer, and the thing you focus on is, the circumstances surrounding it, always asking this question, why are we still right, or why am I still right, in spite of this perceived problem? And so we're gonna move forward into another area of common problem people see in your car crash case, where someone has a, some kind of neck back injury, such as a herniated one. Nice, let's get into it. All right, so let me go, here's another common one that we face all the time that everyone will typically, most people will see it as a problem that would require you to be concerned about going to trial. It would cause you to think I need to take a lesson settlement, and this is an opportunity to share with you why. There is no reason to take a discount, and to be fearless to go to trial. And so this topic involves, your client is not a perfect specimen of health. They've got wear and tear. They've got some health problems. They've maybe been in some other crash and gotten hurt. Maybe even hurt in the same body part. Maybe they eat too much and they're overweight. Maybe they're unfortunate and they're struggling with diabetes or some health problem. And generally, when you look at it, the underlying problem is the conclusion the defense wants to reach, which is wrong is, well, you already amassed before this, how much worse could disambate it? They may take it all the way extreme to say, your problems come from other things, not this. - Wait, so why does this problem happen? What would you say contributes to that? - Well, I would think about the practicalities of it, the real life reasons. We don't represent children. Children may not have had problems, and they may be, unfortunately, some kids do, but certainly most kids are fairly healthy. When you get the adults, we got something wrong with us. It's called aging. Anybody that has grown up is gonna have had some problems with it back, 'cause you're back and never gets a moment off. Everything you do, turn, look, lift, everything we do, involves your spine. So it's gonna, at some point in time, you're gonna pick something up, you're gonna slip, slap the wrong something. You're gonna have some problems with it, probably have gone to a doctor that has hurt. So there's gonna be a history with spines, but it's more than that. Grownups tend to end up having health problems. We got wear and tear, we got mileage, we got people start to get diabetes, they get overweight, they get a variety of problems. They could be struggling with cancer and having chemo. So what? - Got it, so this is something, this is something that you have to contend with frequently, and you have a way to spin this in a way that makes it favorable for you. - Absolutely, accept. I'm gonna correct one thing, just 'cause I'm sensitive. You know I'm big on integrity. I don't believe I spin a damn thing. What I do is focus people accurately and honestly on the truth. So in what I find the defense does is spin. And I know you're using it in a loose sense. I just react to it because I've had lawyers accuse me of it in a courtroom, and I go after 'em pretty hard when they do it. So I'm sensitive about it 'cause that's not who I am. But I know that's not what you meant. Now let me answer the damn question and quit being sensitive. The answer is, yeah. There is a way to very easily tap into common sense, collective wisdom, life experiences, and teach people why that's just not a fair defense here. And so let me give you the baseline of it. Let me give you the fundamental guts of it. But I wanna start with the formula 'cause I don't wanna leave this was just, hey I've solved that problem for you. I wanna leave you the, how did I do it? So you can solve any problem comes your way. When the problem is one, it's unfair to reach the conclusion the other side wants. Not where, hey it really isn't problem. My client did something terrible. So let's go back to it. What is the fixed fact? What is the perceived problem? My clients in Lowsie Health, they're overweight and they've had some back problems, and now I'm soon over a back problem. That's a fact. That's a fact. Wrong conclusion. That means you couldn't have been hurt badly in this case. This isn't a big case, it's a small case, if it's any case at all. Wrong, wrong, wrong. Right conclusion. The background of my client is actually making this injury, a worse injury for them. Therefore the value of for being fair about it is of a greater value for having taken what was remaining of their health. So what is now? I look at the problem and say, why are we still right in spite of the fact that my client's 300 pounds, got diabetes and had back problems in the past, and I'm having a lawsuit of a back problem. Why are we still right in spite of, and I look at the circumstances and I look hard. And so what is the answer? I've looked at this hard. Here's the answer. Baselines, reserves and coping. And if you're not driving, please write those three words down. Now let me put those three powerful words into use. When my client was younger, my client was in perfect health, was a perfect specimen health. And therefore her baseline was way up here. Way up here. And over time, wear and tear, some health problems, some age, her baseline dropped down some. And now it's down here instead of up here. No fault of the defenses, but it's a change over time of circumstances that often happens as people get older. Well guess what happens when they were up here? My client had all of this in reserve. I'm gonna stand up a little here. All of this in reserve. But when it came down to here, how much is left in reserve? A whole lot less. Instead of this in reserves, it's this in reserves. What does that do? It affects coping. A person's ability to cope is directly tied to the amount of reserves that they have. When their baseline is up, they got a lot of reserves. Their ability to cope with something like this being thrust into their life unnaturally is greater. That's just common sense. When reserves are lower because their baseline was lower, then their ability to cope with this kind of injury is less. It's common sense. So this injury to my client, honestly, if you think about it would have been less of an overall impact had my clients help in perfect, but it wasn't. And as a result, the impact and the ability to cope is more profound because this isn't like an addition problem. We don't say well you had these two problems and we just added one more so that equals three. It's not an addition problem. It's a multiplication problem. There's a compounding effect because the reserves are down and the coping is less. That's like saying to somebody, you had two good eyes and you lost an eye, unrelated. And then someone came along later and caused you to lose the other eye because they weren't doing their job. Would you say, well, you lost one eye now you lost two. No, you went from being able to see, you all be it limited to not be able to see it all. It's compounding. So it's worse under these circumstances. So that's the underlying basis. And if you want, I'll give you a couple more layers to it that then came out of that epiphany. - I'd love to hear about how you reach those epiphanies. Maybe you can elaborate. - Sure, it's just a matter of, I sat in a courtroom over and over and I watched the defense exploit the fact I had clients who had a little age, had a little mileage, had a health problem, had a weight problem. I don't care what. And honestly, to me, it felt like you're treating them like second-class citizens. They're undeserving injustice because they aren't triathletes and it frankly piss me off. And I felt like there was a chance of an injustice happening on my watch, which I am very intolerant of. So I. I spent energy and effort focusing on saying, I know this isn't fair. I know where right. Why are we still right in spite of the fact many of my clients got histories of health problems and aren't great in great health? And why shouldn't they get full justice too? And I started thinking, is it practical matter? Well, they're getting older. I got bad clients. It isn't that, you know, why am I so unlucky? It's because everyone at age has got problems like that most. So of course, I've got clients with those problems. So then I said, well, what am I going to do about it? What's wrong with it? And it realized, the light went off. I said, here's what's wrong with it. It's the opposite of what they're portraying. They don't have less of a need for justice. This injury was not less impactful because of their pre-existing conditions and problems. It made it harder to bear the burden of this additional problem. It dawned on me. This isn't a simple addition problem. It's not one plus one equals two. It's exponentially greater. It's like saying someone had two good eyes. They lost one unrelated, just some medical condition. Then somebody comes along and they're in a crash and they lose their other side. Would you ever say, well, you don't lose one? This is just one more. Hell no. It's not addition. It's multiplication. It's compounding because you went from some vision to no vision. Not, well, just one more eye. And that same principle in my mind led to, all right, now how do I put words to make sense of this? I've seen it. Now I got to explain it, which means I have to communicate it, which means I have to pick the right words. And the more I thought about it, I thought, well, basically, people have a baseline. And at the baseline's lower, their reserves are lower. We all know what reserves are. If I go to get up and carry a heavy load out of the car and I'm feeling great in the morning, I just carry it and drop it. If I woke up and slept wrong, got a crick in my neck, I go to pick up a, oh my God. And it's much harder to get that to the car. Why? It didn't get easier because I had the crick in my neck. I got worse. So I realized that's because your reserves are depleted. And anytime your reserves are depleted, your ability to cope is worse. You're not as good at coping. When your reserves are high, you can embrace, you're not embraced, but you can withstand the blow of something else because you had plenty and reserved to handle it. So that's where the words of it all came from. That's where the epiphany became something usable and shareable and reproducible. Love it. And as we always do on the series with the Keith Mithnik show, maybe you can extrapolate a broader 20,000 foot above principle that people can use in their everyday life from the epiphany that you had and this brilliant piece that you had. Let's start with a life story. All of this stuff has to do with what I consider empathy. And I think empathy is essential to our country coming back together and healing and loving each other again. Empathy doesn't mean sympathy. That means you feel sorry for someone. Empathy means I can appreciate what you're going through. And I can feel for you. I can recognize that's got to be hard. You're carrying a heavy load and I get it. And I feel for you. I don't feel sorry for you. I get it. I appreciate it. That's called empathy. These are empathy lessons. I'm thinking if someone's walking down the street and they're really overweight and they're kind of struggling and I'm trying to get around them on the sidewalk and they're kind of blocking it. You know what I'm thinking? I got a mighty butt. Get the hell over. I'm going to hurry. If I take these lessons and remind myself, wait a minute. You know what? I'm moving quick because I'm in better health, which means my baseline is better. I should be saying thank you not getting aggravated the guy. And I want to recognize his baseline's lower, which means his reserves are down in his ability to coax down. That's why he's moving slow. So how about being a little patient and saying thank you that I'm not struggling like that, I feel for the guy. Instead, I want to ring his neck because he slowed me down. That's the empathy side. We can take these lessons into life and just remember when you're frustrated, ask yourself, what is that person's baseline? What are their reserves? Is that impacting their ability to cope? It can be in your family. It can be a stranger. And I believe it'll raise your empathy level. And I believe it makes us all better people the more empathetic we are. So that's the life lesson. So let me wrap today's-- Love it. Love it. Good. Let me wrap up with an actual courtroom example. I tried a case. And the person had had a catheter that was in because they were having rectal cancer surgery. And the nurse-- not on purpose, but did the nurse pull the catheter out and wasn't supposed to be pulled out yet because there was an area that was healing from the surgery. As a result, the person ended up with a permanent injury that required them to have a surgical catheter put in through their stomach rather than through their genitalia that would come out temporarily. It went right into the bladder through their stomach as they were forever for all practical purposes. And that person-- that was the lawsuit. Well, the person unexpectedly, their cancer came back and they ended up-- they were thought things were going better with cancer and going to survive. They didn't. They died before it ever got to court. So we couldn't bring a wrongful death case because the cancer had nothing to do with what the doctors did wrong. All we had left is what's called a survival action, which is what is the value of his suffering during the 18 months with this catheter in? That's all the only thing we're entitled to pursue-- not the wife missed him for dying because the death in fairness had nothing to do with this. So I got this case. And we're in it because we didn't expect him to die. Didn't we? We aren't going to quit on the client under those circumstances. So we finished it. I came and helped our lawyer try the case. And here was the issue. The defense was trying to diminish it by saying, it's only 18 months-- I think it was 18. I may be off a little, but I think it was 18 months. It was only 18 months. And by the way, the whole 18 months, he's under chemo. He's struggling with cancer. He's got a colostomy bag because his cancer was rectal cancer. So he had all these problems. So how much worse could it be that he had a urine catheter in? Well, the testimony from our client was-- but we videoed him before he died and his wife said-- that it was causing him all kind of problems. Much more than the other, they thought the chemo would be terrible. It wasn't great, but what is bad as they thought? The colostomy bag sounded gross and horrible. It turned out, well, nobody would want it. It was having much less of an impact than they thought. But the urine bag was leaking. It was causing-- he would have spasms in pain, and blood would drip into it. He felt like he'd smell bad and didn't want to go out. And suddenly, it really was having a profound impact. But it's 18 months, and he had all these other problems. So guess what? It was a perfect opportunity to use this thing. I invented. So I told the jury, this person is living with a heavy burden already. He's on chemo. He's got a colostomy bag. He's in a fight for his life with cancer. And this has been thrust into his life, unnaturally, because someone didn't do their job right at the hospital and pulled this thing out. So now, on top of all that, now he's got the urine bag that is a catheter in his stomach, and it's causing him all these problems. And I listed those problems. And I said, so why does it matter if his life already was so burdensome? I said, I'll tell you why. Because his plate with already full, this was the last thing he needed. Why? Because his baseline had come down so much with the significant struggles he was going through. He had so little left in reserve. So the ability to cope with this pile on top of it created extraordinary suffering for him, extraordinary. And it wasn't just over a meaningless period. It was the last 18 months of his life. And anything that's precious that's in lesser supply is more valuable. And this is the most precious thing. The last 18 months of his life were spent carrying this extra load all times not equal. And his burdens were down. And then I went through and explained it's not an addition problems. And the end result of that story is the defense who really treated it in our opinion as not something to be worried about. Because it just couldn't-- no jury was going to give a significant amount under the circumstances. We proved him wrong. The jury did do a significantly right thing. Why? Because I talked to him in a way that was straight talk. And they got it, and they understood it, and they did the right thing. And it's why I love what we do. Because when this system works, it is one of the most beautiful things you'll ever see in your life. And what I'm sharing is ways to give us a better chance of it working in courtrooms and hopefully in life. [MUSIC PLAYING]