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Mitniks Monthly Brushstrokes

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Episode

105 – Keith Mitnik – Deeper Cuts: Systems That Simply Work

By Michael Cowen — 11 months ago

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In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary Morgan & Morgan trial lawyer, podcast host, and author, Keith Mitnik, for a second time. They discuss Keith’s recently released book, “Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts,” new voir dire techniques, and the importance of words.

Jumping right into the podcast episode, Michael asks Keith how he gets full damages on cases with no obvious villain. Keith shares a recent example where he framed everything around the statement, “It’s not about how much she’s going to get. It’s about what was taken, and what’s a fair value for what was lost.” He draws an insightful connection between our modern-day justice system and the “eye for an eye” justice system of the past. The “brutal” eye for an eye system was never about the punishment, but about recognizing fully what was taken from the person who was wronged. He’ll explain this concept to the jury, and the results are powerful.

Keith continues by explaining the evolution of his voir dire process over the years, including how and when he gets the jury to get a discussion going. He’s tried many methods throughout the years and shares their flaws, but feels very good about his current strategy, which he calls “The First Big 3.” He’ll set up voir dire with the story about full recognition, then start questioning the jury on the big 3 types of bias:

  1. Feelings against this type of lawsuit.

  2. Feelings against the non-economic part of pain and suffering.

  3. Feelings against large verdicts.

After asking the jury about these 3 items, he’ll share the idea that it’s not about how much was taken, but how much was lost, and ask how it felt when they heard that.

Continuing this line of thought, Keith adds another change he sometimes makes to his voir dire, which is asserting that the jury’s job is not to assess the income of your client – it’s about the value of his or her health, which is way more precious than income. These changes have made for a great dialogue between Keith and the jury.

Michael then asks Keith about something he loved in the book – having the client create a list of the “little things.” Keith explains how we often base damages around the big things that are important to the client – but especially with hobbies, those things are rarely important and are often unrelatable for the jury.

To assist with this process, Keith gives clients a small notepad and a homework assignment- to write down every little thing they notice has changed due to their injury. This includes things they continue to do but in a different way and things they do but now it hurts. Then, he’ll sit down with the client to choose a list of the best ones. By the time the client is deposed, the client is able to readily provide a laundry list of relatable examples of how the crash has changed their life, and the defense lawyer is highly motivated to settle the case.

This leads Keith to share a brief but heartfelt story of a recent trial where he decided to ask the jury in voir dire about race, and why he plans to do it again in the future. It’s a story sure to resonate with any trial lawyer hesitant to bring up a sensitive topic in voir dire.

If you follow Keith Mitnik, you know he’s a man of many words – a self-proclaimed “word nerd.” So Michael asks the next logical question – why do words matter, and how does he come up with the words he uses? Keith explains the process he uses to find the best anchor words, where he circles any words he feels might not be the best, then turns to one of his many trusty thesauruses to see what else is available (He recommends either Word Hippo for iPhone or Wordflex for iPad). He shares some real-life examples before explaining the difference between inert words and activator words:

     Inert Words – Ambiguous words with different meanings to different people.

Activator Words – Consistently activate a particular meaning and a feeling.

From there, a word can be either a positive or a negative activator word, meaning it can work in your favor or against you if you aren’t careful. Keith shares numerous examples of inert and activator words, and how he chooses them based on the person he’s addressing.

Moving away from “Deeper Cuts,” Michael asks Keith what his strategy is for going into a case that someone else worked up to try it. Keith highlights the obvious disadvantages as well as the not-so-obvious advantages of this – notedly that he’s able to experience the case “in one, overwhelming wave, just like it will with the jury.” It provides a truly fresh perspective. His one requirement is that he needs to spend time with the client before the trial begins, to connect with them in his heart.

He continues by sharing the different ways he’s split cases up with other lawyers before, and how it varies depending on the other lawyer’s experience and skillset – though as you probably know, he almost always takes the voir dire, opening, and closing.

Michael and Keith then wrap up the episode with a promise to have Keith return soon. In the meantime, you can purchase his books Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts and Don’t Eat the Bruises, listen to Keith’s own podcast “Mitnik’s Monthly Brushstrokes,” and even join his listserv. To join, email Keith at kmitnik@forthepeople.com and copy his assistant Mary Arnold at marnold@forthepeople.com asking to join. They’ll even send you the past editions if you ask!

This podcast episode also covers why it’s important to emphasize your client’s injuries were brought to them “unnaturally,” a story from a recent trial where Keith had to improvise with a client on the stand, how to combat a convincing defense expert, why Keith almost always does both voir dire and opening, and much more, including numerous stories of Keith’s real-life trial experiences.

 

Bio:

Keith Mitnik is the author of Trial Guides’ bestselling book, Don’t Eat the Bruises:  How to Foil Their Plans to Spoil Your Case.

He is also known for his popular audiotape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, oftentimes 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.

 

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Episode

29 – Keith Mitnik – Thoughtful Prep for Winning Cases

By Michael Cowen — 4 years ago

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with renowned attorney, host of the Mitnik’s Monthly Brushstrokes podcast, and author of “Don’t Eat the Bruises – How to Foil Their Plans to Spoil Your Case” published by Trial Guides. With a $90M verdict, ten 8-figure verdicts, and a ton of 7-figure verdicts under his belt, Keith’s vast knowledge of trying civil court cases is truly extraordinary, to say the least.

Michael hits the rewind button right up front to ask Keith how he learned to become a trial lawyer. Keith recalls how he knew from a very early age that he wanted to become a lawyer, but always assumed he would become a criminal lawyer. It wasn’t until he asked a professor of his about connecting with some of the best lawyers in Orlando, which happened to be partners of his professor, that Keith learned about other opportunities outside of criminal law. His journey to becoming a civil trial lawyer was organic but swift, having interned for the lawyers his professor introduced him to, and trying his first case only 2 months after becoming licensed with the firm. Keith attributes much of his learning back then to being allowed to dig right in and learn from being “in the trenches” versus following someone around for 10 years before getting any “real” experience. It also helped that both his mentors were exceptional lawyers who came from opposite schools of thought, where one was the type to turn over every stone and simply outwork the other side, and the other was a brilliant free thinker in the courtroom. Michael also points out the myth that it is hard to get trial experience these days, whereas he suggests doing what he did in the beginning: get out there and tell other lawyers you’ll try their Allstate cases, and there are a lot out there to get experience from. It is also important to recognize there is value to taking a case to trial well beyond the verdict or settlement that is reached, especially for attorneys looking to get experience. Keith also advises young lawyers going into the courtroom that “it’s not about being pretty.” Jurors are not deciding about things based on how polished you are. They are deciding it based on your integrity, believability, honor, honesty, AND the preparation you did to get there. Not just in the hard work, but in the mental preparation of thinking through how it’s all going to play out and putting yourself in the best framework to maximize your chance of winning. And all of that happens outside of the bright lights and intimidation of the courtroom.

Michael notes that one of the things he’s taken away from Keith’s books, podcast, and other teachings, is that he really takes the time to think through his cases and the best way to present them, but asks Keith exactly how he structures his life in a way that allows him to have enough uninterrupted time and deep focus to do the case right. Keith says anyone can learn to be a good talker, but what separates you from the pack is the thinking that goes on before you enter the courtroom. Most of the good talkers he’s seen have just gotten good at repeating the same, somewhat canned “routine,” or have gotten good at memorizing those lines. Whereas the exceptional lawyers separate themselves from the others because of the mental process of planning before they ever walk in and recognizing that the other side is going to put up a good defense, as they always do. Essentially preparing to dismantle their defense and ideally leave them with nothing. Keith goes on to explain not only will that set you apart, but it’s also the fun part of trying a case because you can be working toward solving the problems of the case no matter where you are in litigation. Keith then reminds us of Sherlock Homes and how his greatest gifts were not his analytical strengths or his extraordinary knowledge of science, the arts, math and physics, but rather it was his ability to focus on a problem long enough to solve it. Ideas and practices like this are good reminders not to shortchange yourself on one of the true joys of trial work and will likely also be included in Keith’s upcoming book. Before leaving the topic, Keith talks about one other core principle that he uses on every contested point of a case, which he calls “the wisdom of the whys,” where he asks why are we right and why are they wrong? Of course, you need to be brutally honest with yourself with these points, so you can see the times when the opposition is right on a point here or there, and then be able to take things one step further for those points to ask, even though they are right on one point, how are we still right overall, which Keith refers to as the million dollar question.

The conversation shifts to talk about the methods used to persuade a jury to give full damages in a case, or as Keith refers to it, maximum justice. Keith uses a two-pronged approach for this, the first being that you as the attorney need to believe in the number you are fighting for, and the second being that you need to present the jury with a reasonable damage model. This approach of believing and validating to the jury why your client deserves the damages you are asking for, and in some cases may seem like an extremely high number at first, allows the jury to gain perspective on the numbers instead of smelling the fear of those who might be inclined to just pick a big number out of the air that even they don’t understand or believe their client is deserving of. Keith also suggests if you can lay out a damages model that the jury can understand, even if they disagree with it, they can at least have the ability to discuss it in a format that makes sense instead of punishing you or your client for damages no one believes are just. To drive the point home even further, Keith describes the “pep talk” he’s given himself in the past about why he is trying this case in the first place and the thoughts he needs to be overcome, especially in the early years of a practice, in order to have the full and deserving confidence for what is being fought for in the courtroom. Truly inspiring and passionate words.

Keith and Michael are able to fit almost a full day’s worth of topics into this episode that every lawyer is likely to learn from including connecting with the jury through the power of analogy, tips and tactics for approaching voir dire to establish the ideal jury, the burden of proof, and the detailed strategy Keith uses to prepare for closing that gives him all the confidence in the world by design. Keith also is kind enough to offer an emailed version of a memo he drafted internally for his office regarding putting an end to the defense belittling the pain of your client just because you can’t see it. Michael had a terrific time talking with Keith and is excited to share this episode with everyone.

“Please note the TLN19 discount code mentioned in this show has now expired.”

 

BACKGROUND ON KEITH MITNIK

 

Keith Mitnik is the author of Trial Guides’ bestselling book, DON’T EAT THE BRUISES:  How to Foil Their Plans to Spoil Your Case. https://www.trialguides.com/products/dont-eat-the-bruises

He is also known for his popular audio tape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, often times 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.