By Keith Mitnik
INTRO NOTE FROM PAPA DON: Keith Mitnik, based in Orlando, tries big and small cases all over the U.S.; he’s a sure enough trial lawyer. I’ve known him by name because he is an innovative and cutting edge Bubba, but only recently have I come to know Keith, and he’s a fellow anyone would be proud to call your friend. So sit back and enjoy:
Now for Keith’s blog:
Through the Reptile© lens, it is clear to see why those photos of your client’s bumper, in a fender bender, wreak such havoc on whiplash cases. They exploit that distrusting part of the plaintiff’s lawyer/plaintiff code that says – I bet they’re going to try to get something for nothing. Left to their own devices, those pictures communicate – if all it did was scratch the paint or ding the metal, then that rear end tap could not have done much harm to the occupants.
Here is a tried and true way to get off code and to expose the defense as actually being the side trying to make a mountain out of a molehill. It is a four step process that involves using the right words, shooting rats in jury selection, putting the concept in context, and bringing it home with an analogy.
The Right Words
As far as using the right words, never say “low impact,” that is aiding and abetting the defense in their plot to convince the jury this little mishap wouldn’t hurt a flea. Instead say, “not a lot of visible property damage.” The phrase connects with life experiences where your car got repaired and never ran the same. Everyone understands the old adage – there’s more there than meets the eye.
Jury Selection
Armed with the right words, it is time to clean house during jury selection, time to get rid of those who would be cheerleaders for the defense on this issue. The question to smoke them out is as follows:
How many of you feel if there is not a lot of visible property damage, there must not have been a serious injury, certainly not a permanent one, no matter what the rest of the evidence shows or the doctors say?
In a venue with decent law on challenges for cause, this should be enough to excuse those who are preprogrammed to buy what the defense is selling with those pictures that appear harmless. Even in venues that leave it entirely up to the court’s discretion, this may get the judge’s attention.
If there is a good chance the judge will remove the tainted ones for cause, I would save the next two steps until after jury selection. On the other hand, if you have a judge who will likely deny your cause challenges and there are too many to get rid of with your peremptory challenges, then the next two steps can be injected into jury selection to start a discussion that may turn the tide with some jurors and will allow you to identify the worst of the bunch, the ones that have to go.
Context
We must put the events in a context that allows jurors to conclude, on their own, that the forces involved could certainly hurt someone. The best way to do that is set up a scenario that makes the jurors silently cringe when they hear it. The moment they cringe or feel a phantom pang of pain, the deal is sealed. Cringing is very Reptilian©. Here is a little story that will make all of the grownups on the jury steel themselves at the thought of it.
I don’t know why it is, but kids love to sneak up and shove each other in the back, then run off laughing. Right now, there are kids on playgrounds all across America being chased around by their friend for having shoved them from behind. Adults don’t sneak up and shove one another in the back, then run off laughing. Why? Because our spines are not so elastic and someone’s gonna get hurt; it ain’t funny!
(The thought of being suddenly and unexpectedly shoved from behind will have the 40 and up, full grown jurors bracing themselves involuntarily and wanting to reach for the necks. I bet you reacted that way when you read it.)
Analogy
Now the jury understands that the forces involved in suddenly, unexpectedly ramming an adult from behind need not be great to pose a real threat to the spine. All that remains is to show them, in a common sense, self-authenticating way, that the exterior marks left behind are not a reliable measuring stick for the risk of causing internal harm.
For this example, we’ll say the defense claims the impact was at a mere 9 mph. To start with, put an empty chair in front of the jury facing them and stand behind it, then give this analogy:
The defense says the impact was at 9 mph. I don’t know how fast 9 mph would be on foot, but I bet I’d be moving pretty dang fast across this courtroom to get up to speed. If an adult was sitting in this chair and, without warning, I came running across the room at 9 mph and rammed the back of this chair hard, and the person sitting in it, who had no idea what was coming, grabbed their neck and hollered, “What the heck are you doing, you hurt me!” Would it be fair, if I turned the chair around and said, “What are you talking about, that couldn’t have hurt you, it didn’t even leave a mark on the chair”? Of course that wouldn’t be fair, because it is not damage to the chair that causes harm, it’s the forces from the sudden, unexpected ramming from behind and the violent snapping back of the neck that tears things up inside.
(For this demonstration, smack the back of the chair, not over-dramatically, but hard enough to make the point, then turn it around and show the jury there is no mark, as you say, “What are you talking about, that couldn’t have hurt you, it didn’t even leave mark on the chair.”)
When you turn that chair around, you’ll feel like you are spinning defense counsel’s head around with it. You will see jurors nod as the point hits the mark. I like to capitalize on the momentum by following up with something like this:
The defense can blow those pictures of the fender up as big as they want and drag them out as many times as they want, it won’t change the truth and it won’t provide an excuse to avoid the consequences of breaking safety rules. Why? Because Kinko’s doesn’t make a size big enough to hide common sense behind.
Together, these four steps will take the teeth out of this pet Reptile© of the Black Hats and clear the way for your primordials to stake their rightful claim on hallowed high ground.
NOTES from DON:
1. This week I got 5 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.
2. We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 12 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service