In every case, I ask certain questions to start the process of figuring out how to best present the case to the jury.
Two major questions: Why are we right and why are they wrong, globally? Why are we right and why are they wrong — on each point of contention?
Usually, they will be right on a point or two of contention. So then you ask: Why are we still right and they’re still wrong, overall?
Follow that up with this final guidepost question: What is the path of least resistance? In other words, how can we map out a course to best avoid pitfalls.
The answer to those questions leads to constructing winning frameworks. They also guide the process of creating the language of the case — picking the right words and phrases to best tell our story and posing the right questions to focus jurors on our strengths.
I do this in every case. Asking myself the hard questions leads to epiphanies and flashes of insight beyond what I would ever get from just compiling a laundry list of facts and evidence to be marshaled out for the jury to figure out.
The best revelations are not a product of genius — they are a product of processes.
Here is one example of using the “whys”: My striking-the-back-of-a-chair analogy for cases where there is not a lot of visible property damage came from that process. (If you are not familiar with my model for disarming the defense on cases where there is not a lot of visible property damage, please get my book. This-eye opening strategy can singlehandedly change the outcome of your trial.)
Why are we right globally? The defendant unexpectedly rammed our client from behind and she had no problems with her neck before the crash; but now she has had problems with her neck ever since the crash. Therefore, the crash caused a forever injury on her neck.
They say the pictures of her bumper are unimpressive, therefore she couldn’t have been hurt permanently in the crash. They are right about the pictures only showing a scratch, but why are we still right overall? Because, it is not about the mark left by the impact. It’s about the unexpected jarring forces that caused her head to snap back.
The answer to that “why” question lead to the phrase. “not a lot of visible property damage,” as opposed to “low impact.” Why? “Low impact” implies not enough force to cause serious harm. “Not a lot of visible property damage” is accurate, but implies there could be more there than meets the eye and it does not imply harmless force to the occupants who were shoved unexpectedly from behind.
The chair analogy brings home the answer to the “why.” Being shoved unexpectedly from behind is the culprit. Shoving someone unexpected, causing their head to snap back, absolutely does not require metal crushing forces to inflict injury.
The point is galvanized when coupled with the story of kids sneaking up on one another on playgrounds and shoving each other in the back — something grownups don’t do because “someone’s going to get hurt.”
But for asking the whys, none of that happens and pictures of barely scratched bumpers would continue to derail justice.
After all of that, now add the last question: What is the path of least resistance?
For example, if the client has a long history of lower back pain, but a healthy neck, limit your claim for damages to the neck. Now the “not a lot of visible property damage” model really works.
Overall, the whys work. If you don’t already do it, try it.
Listen to ‘The Whys’, explained in further detail on Keith Mitnik’s podcast. Subscribe on iTunes or SoundCloud.