Why Negligence Is More Than An Accident

Welcome back to another episode with the legendary Keith Mittenick or the Outspiring Series. Really pumped for this one. We have some definitional items that you want to discuss. I do. And what I want to do is we'll pick up where we left off. We just didn't have enough time to finish. Too big of a topic to finish. Last go around. And remember in the last episode we talked about part of this teaching about or explaining how the civil justice laws work was the distinction between an accident and negligence. The underpinning of the civil justice code or the civil justice laws is it is not permitting people to act unreasonably. They have to use reasonable care for the safety of others. The single word for that is called negligence. People generally don't know what negligence means. It means failure to use a reasonable care. That's what it means. Means you got to be careful. Not super careful, but you can't be careless. You got to use reasonable care. In the simple word that the judge will explain to jurors is negligence. If someone violates that law, they act negligently and it causes harm. Then we switched as we talked about last time. Now we move into the second phase where we're now assessing what is the full value or for what was lost in the way of health. What was taken as a result of injury caused by the negligence. So people. I don't want to take that for granted. I want to just stop you there. Accent versus negligence. Can you impress a little bit more on why those are important things I'm glad to because it's everything. The defense side loves to say it was an accident accident. If you were to take a little counter in the courtroom, in listening the number of times the defense says the word accident, you probably break the counter. You can't keep up. Why? Because we were all brought up here in some version of this. Accidents happen. Which means it's no one's fault. Which means there should be no consequence. There should be no punishment. Now remember this system has zero nothing to do with punishment. We are not punishing the negligent person. So you take punishment out. It is a system for safety. It demands a certain reasonable level of care. And if you don't and someone ends up hurt as a result of that, then we fully and completely recognize the full extent of harm caused to that person. What is the harm caused because of the negligence? Not to punish. Because once there's negligence in the third party that happened to be out there, they'd got hurt because of the negligence. That person should have a remedy. The remedy is full recognition of the harm's and losses caused by the negligence. Not punishment. We're now focused on the harm's and losses caused. Now, therefore, this whole point of view, the defense loves, which is an accident, is to suggest accidents happen. It's no one's fault. It's part of human nature. That is wrong. Yeah, that's right. By the way, it's just not you will not find the word accident in the civil justice laws in any state in America to my knowledge. Certainly not in any of my tried case in, which is a whole lot of states. So what's the distinction now? Because some folks know what's the difference? Accident negligence. What's the difference? Don't they talk about accident reports? Doesn't the police officer say the accident occurred on so and so date? Yeah. The word accident is made it into the ticket right inside of it. People call it an accident because people said, man, it's not on purpose. But now we're in a court of law. We're now enforcing the civil justice laws. And that Lucy Goosey language has no place. Now, can you stop the defense from using it? Probably not. People file motions to try and say you can't use the word judge saying say what they want. But you shouldn't if you're on the side representing them, the judge shouldn't and most won't because it isn't the standard. It's negligence. So what what I'm making a big deal out of it. Because I remember right now sitting here, I can remember my dad, my brother and I chasing each other around the house and we knocked the lamp over in my dad who had hot head. And I can remember my mom saying Nick Honey, it was an accident to settle him down because he was going to ring her next. We all have a story like that. That's why the defense loves it because they want to get slip into the punishment on purpose. State of mind, which has no place in a civil court law. It doesn't a criminal, but they want it to be more like, are you going to like we did it on purpose? So what is the difference? Technically, not just I don't like it. What's the difference under the law? What's an accident? A clumsy dancer steps on his dance partner's toes. A young kid who doesn't have ball control is throwing his daddy any over throws his glove and breaks the neighbor's window. That's an accident. Someone runs a red light and teabones someone and changes their life. Is that that little kid throwing that baseball and doesn't have ball control? Is that that clumsy dancer who stepped on his dance partner's toes while he's trying to, you know, swirler? It's night and day. Negligence is an official wrong under the laws of civil justice. It is something that rises to the level of an official wrong under the law. Not an accident of a little kid. Not a clumsy dance partner. You violated the civil justice laws. What you did was not bad enough to be on purpose or you'd be in criminal court, but it's not an accident. It's bad enough to be qualified as negligence. You did not use reasonable care for the safety and well-being of the other people on the road with you or in that department store or wherever you were or a doctor for the safety of their patient or a product for the safety of the people you're making money selling the product to or a drug for the safety from a pharmaceutical company to make sure you're not causing harm. You're supposed to be helping unreasonable harm. And if you don't take reasonable care, it's not asking too much to use reasonable care. It's not some ridiculous standard. We teach our children to use reasonable care. We may not use that word, but you say be careful, honey. And if you're not using reasonable care and you hurt someone, in most of the time it's an adult by the way, or it's 17 year old driving a car. By God, if you got a licensed driver car, you better use reasonable care. I don't care if you aren't on the legal age to buy a beer. You ought not be being unreasonable. You're being unreasonable. What is it? Let's stand a car crash. It's a 50 mile an hour zone and you're doing 75. That's not reasonable care. Do people do it? Yes. If they hit someone and change their life, you triggered this system that remember it's about safety and remedies. So how do you price the accident? How do you price that? The negligence, right? How do you price the negligence? I'm going to change the word price. And a lot of lawyers would say it is, you price it. I don't. Just because it starts sound like you're it's a business transaction. And there's none. This is not a business transaction. Because when you know when you price something, you go to the store to buy it, you are intentionally taking that product home and paying something for it. And the person who's selling it is happy to get your money for you to take that product home. It's an intentional, informed business decision. Wow. This isn't a business decision. Someone was driving to go pick up their kids from soccer and someone who wasn't using reasonable care. Who ran through a stop sign? Who pulled out and didn't look both ways. They didn't see it. They didn't pull out in purpose that I'm going to ram you. But they pulled smack out in front of the counter motorcycles. Now missing a leg. Why? Because they were in a hurry and they were trying to rush out and they looked one way, looked the other. Because they were trying to get through the center and go cross two lanes of traffic and never look back. Well, you know what reasonable care is, you know better, look back. Someone could have come around that corner and be there. So if you didn't use the reasonable care and now someone got hurt because of it. That person was minding their own business. And this injury now is thrust into the life, not from an accident. It was thrust into the life because someone wasn't doing their job of following the rules of reasonable care on the road. wherever it happened. So what do we do with that? I don't say price it. I say assess it, value it. We bring jurors in from the community to sit as a group of appraisers and they assess the full value what was taken in the way of health. It's not about how much they're gonna get. That's the idea, oh, we're gonna celebrate. They're gonna get a bunch of money. They'd love to have their health back. They don't want the money. They want their health back. That's not an option. So what are we gonna do about it? We've decided what we're gonna do about it. We gotta say, well, just as laws it, tell us what we're gonna do about it. We're gonna recognize completely the value of what was taken in the way of health, what was lost in quality of life, enjoyment of life, how their health and experience of life baseline was dropped forever. If it's a permanent forever injury, a lifelong injury, they're never going back to here. And they can't go back there. So we take that loss. If this was your baseline and now you're here, we take what was lost and say, what is the reasonable value of that? How do we tell it? Is there a formula? Does the judge say here, I'm gonna hand out a sheet for each of you so you can calculate it. You can do that on loss of income. You can do that on medical bills in the past, in the future. You can't do that on the impact on pain and suffering, on what I call human damages. So how do we do it? We gather people from the community to sit together and use their collective wisdom and they say, I'm listening to the evidence the judges give me these baseline instructions. But after that, we're gonna put our heads together and decide was that a big loss? Was it a teensy loss? Was it a medium loss? And then we're gonna attach a numerical amount, a dollar figure to that. That is the piece of, when I say it's about safety and remedies, the remedy is not a philosophical debate who was right and wrong in the road that day. The remedy is money. We're into business of getting a remedy and the remedy is money for what was lost but it is not jackpot justice. My client doesn't wanna pull the lever. They didn't wanna be here. It was happened to them. Someone was violating those safety rules and they changed their life and we don't turn a blind eye to that. That's no justice at all. So we gather people from the community to sit and judgement and say, I'll tell you what's a fair and reasonable amount and the lawyers make suggestions. Here's what we would suggest to use a fair and reasonable amount and if the lawyers do in their job, they're gonna give reasons to back it up. They're gonna show here's how I came up with it. It didn't just pull it out of the air. I'm gonna give you some reasonable measuring sticks that I suggest you consider, you don't have to accept them but I suggest they make sense and then you better be making sense. Not just throwing some number you want, you better have spent time thinking what is fair and reasonable. Look, you can't say to the jury what if it is you but you damn sure as a lawyer you can say it to yourself. What if it was me and what if it was me and it was prospective looking forward, it hadn't happened to me yet. What would be a fair and reasonable amount to say we're gonna take this health from you. We're gonna do this to you but before you agree to it, here's how, let's have a discussion about what be fair and reasonable. I promise you it's a significant amount if it's a significant hurt. That's what we do. But that's a significant part, that is an essential part. So people go, oh, now money's come up. Now I was all with you about the importance of this safety system but it's not a one part system. It isn't a shame on you system and it isn't a punishment system. It is a system with a remedy because remember, they're two parts, someone got hurt, someone did wrong. They violated those rules and someone got hurt. Once we showed the harm, the wrong, the violation and it caused harm, now what are we gonna do with a person who was mining their business and got harmed. We're gonna fully compensate them, not discount justice. Since when was America about discount justice? Half justice, small justice. Justice is about, America is about big justice. If big justice is justified. If it's not, then it's small justice 'cause it's a small injury. And there's some small injuries. Thank God, I wish they all were. But they're a lot of them that aren't. - Just to tie this together as we wind this episode down, you're such a nitpicker on these definitions and the beautiful distinctions that you've come up with. When you were younger in your career, were you making these kind of sloppy vernacular issues and then that's how you learned it? - Sure. If I look back, I remember, somebody had an audio cassette. This will show you how long ago it was. When I, I was still in law school and they had some programmer, you could try cases when you were still in law school at public defender state attorneys. Offs you were supposed to have oversight from a supervisor. My situation, I won't go into detail, but I was kind of flying close to solo. I had a little help. And the lady who was the secretary of the Miss Mr. Meager Department, where I was working, I tried seven jury trials, still in law school, I hadn't gotten out. Criminal cases. Said, I was, I was 15 years later. Said, you're not gonna, she reached out and I reached, I didn't remember her name. She was, I was, oh yeah, how you doing? I was digging through some old things I had and I found a cassette. They had cassette tape. No court reporter. This is in county court. They had cassette tapes. They taped the proceedings. They went to court reporting there. They said, I've got to tape your first closing or your first trial ever. I bet you like it. I said, absolutely. And I couldn't wait to get it. And I thought, you know, it's gonna be rough. I know it's gonna be sloppy and rough. I know clue, but I bet it's gonna be good. I'm gonna have fun. I listened for about 30 seconds and turned it off. I couldn't take it. Wow. You know, I won. (laughs) But it was, and I guarantee you, when I started doing civil and I got out, I used accident. I did all kinds of things wrong. That's so comforting to hear, though. Oh God, I, my dad who, who, I don't want to turn it into a daddy issue thing, but my dad never watched me play football and I was a good football player. And he never watched me. His lawyer, he finally came once. I was young. I still had all my hair. Yeah. And I did jury selection in a med mal case. I mean, I'm, I don't know, you're an half two years out of law school and doing a med mal case. You know, my, myself. And he comes over and we're in the middle of all this tort reform and people can't get babies delivered because all these ambulance chase and they showed lawyers, fat lawyers, playing poker and smoking cigars. He was ugly, ugly. It was all over the TV's, trying to get tort reform in the public behind it. And we had a room full of people who were just rabid against this med mal case. And I didn't, I developed all these systems in part because of that. And you know what I did? I tried to convince them how all those ads were wrong that they'd all seen and how, you know, it's not that way. And I didn't see, accept, they respect their feelings and get them to acknowledge this in the right case form. They got to bias against it. So they would leave and we could get people work tainted. Not they're tainted like in bad human beings, but they have a right to their opinions. They just shouldn't be deciding that case. But I didn't have a clue. I just went in there and argue with them about how they were wrong. And it was bad. My dad came for that. Only thing he ever saw me do. - Goodness gracious. - As a lawyer or as an athlete. - God bless you. - And afterwards, I hear my mom, I was over visit like a week later, hear my mom say, "Nick, not now." And I lost the case. And by the way, no one had figured out how to do it back then. All this stuff has been developed since then how to establish cause challenges. I shouldn't say no one. No one I knew. The guys trained me didn't know it. But my dad wasn't one to be rained in. So he takes me outside and I say, "Yeah, I had no idea, but I knew it wouldn't gonna be good cause I heard my mom say, "Nick, not now." And he says, "I just feel I have to tell you, the way you handle that jury selection was all wrong." And now he starts telling me what's wrong with it. And he never saw me again then. He passed away. - Goodness gracious. - So we all have our driving forces. - Yeah, you can. - I don't mean to make my dad say, he was a good man. - Yeah, and you took it to heart and you've got-- - But I learned from it. So the question is to younger lawyers, are you gonna do it just right? No, you're not gonna do it. I still don't do it just right by the way. But I dang sure did it. Less right back then. It's okay, it's part of the process. But you know what, if you believe in what you're doing and you come with a smart game plan, if someone had told me, don't do it that way do it this way, Durnjers. I may not have been pretty doing it, but I'd have done it right. May not have been perfect. May not have been polished, but the plan would have been right and it may be a different result. But so come with a good plan. Learn from folks that have got more years under their belt. Listen to it, come with a good plan. Go talk with experienced people to make sure your plan's a good one. And bring your company back. your integrity to the court and that she believe in the cause, you'll be fine, it doesn't need to be perfect. And with regards to the process, how do you get the jury to buy into trusting the process? It's these conversations, you know how you respect them. You talk straight. And if you explain, they don't understand the process, most of them, but you know what, they're most of them are smart people. If you take the time to talk to them, within the boundaries of what's permissible, and then they go, oh, I understand. There are some say, I hear you may be buying it. This is all a money grant. Okay. Just then ask the right questions, establish cause challenges so they're not on your jury. And then if you see in the hall, sit and chat with them, they're good people. They're just not good for your case. But talk straight to them. And then some that are neutral and maybe aren't really against, they just don't understand. They go, you see them. You start having these kind of conversations and you start seeing them go, you start explaining why we have the remedy. They start going, okay, you start saying things like, in America, we don't do eye for eye justice, but we also don't believe in turning a blind eye to justice. That's no justice at all, you know what they go. All right. What we do is gather people from the community, sit and chat, sit as a group of appraisers and assess the loss. They go, that makes sense. And all of a sudden, the mystery of it goes out the window and the reasonable to us takes its place. And now we got a chance to have a fair and just result, which is the thing of beauty. - Love it. So just to recap, we learned about accident versus negligence and how important that, those words are, we don't wanna use the word accident, we don't wanna use the word pricing, we wanna use the word assessing, we're taking people from the community. Also, it's okay for young lawyers to make mistakes. - Absolutely. - Really vulnerable thing. - You ain't gonna get better if you don't. - Thank you for sharing that. - By the way, my books, my first book, Don't Eat the Bruises, was not a book mostly of victories. That was me healing. When I had a bad outcome, it was me figuring out how can I do this better. So you'll get better, but you can still do your job, get in there and do it. - And then getting the jury to trust the process by talking to them straight. always be straight. That's was great. Thank you so much.