Don’t Eat the Bruises: How to Foil Their Plans to Spoil Your Case
Having a mentor is critical to a young lawyer’s development and growth. Throughout my 18 year career, I have been fortunate to learn from one of the best lawyers in the business-Ric Domnitz. While I will never be able to deliver a summation as effectively as Ric; nor cross-examine a witness as well-nor handle any aspect of the litigation process as well as Ric, for that matter-I have learned a lot from Ric about interacting with people and becoming an effective advocate at every stage of the personal injury process. I tell you this because virtually every time I review a book for WAJ-books that address various aspects of a personal injury practice-I find myself saying to myself, “Ric advocates this same approach”, or “Ric would disagree with that technique” or “Ric would be a proponent of that method” or something similar. When filtering the contents of this book through this lens; the lens of my professional experiences and training, I can confidently assert that “Don’t Eat the Bruises” provides the reader with a thoughtful system to consider utilizing when trying a personal injury matter.
The author is certainly no stranger to trying cases and, thus, brings instant credibility to the table. While working at Florida’s biggest personal injury firm, he has established an impressive track record by trying multiple cases every year. (Apparently, he is the designated trial attorney who is called in by his partners shortly before trial to see the matter through to the verdict.) Because he has tried so many cases, he became quite familiar with the defense playbook and, as a result, began to develop “countermeasures” to combat the defense “gimmicks.” These countermeasures were eventually compiled and published in this book-a book which is the product of a lifetime spent in courtrooms employing battle-tested strategies that have been fine-tuned over many years:
“The global goal of this system is to gut the defense’s case while trying yours. Any time we rebut a defendant’s evidence, we run the risk of conceding that the case is about their issues. On the other hand, to ignore the defense arguments means to appear to have no answers to them. The strategies in this book will allow you to dismantle the defendant’s case from within the framework and themes of your case. You do not have to retreat, nor let them define the issues, to expose fatal flaws in their case”
According to the author, “not eating the bruises” became a metaphor for not letting a defendant spoil the fruits of our cases by exploiting bias, taking things out of context and over-emphasizing imperfections at trial-which, we all know, the defense does in every single case.
This book tracks the four main parts of a trial with sections addressing voir dire, opening statement, evidence and closing argument. The book ends with a section addressing a new way to deal with the civil burden of proof. Each chapter not only includes a useful summation at the end, cleverly titled “Pairing It Down”, but also includes some samples of how the system was actually utilized in real world situations.
Part I, entitled “Jury Selection: Cutting Out Bias” addresses the worst bruise of all-jury bias. It defines bias, identifies bias, and addresses how to educate the jury about bias. It also addresses how you can identify those at risk for bias so you can protect your preemptory strikes by setting up potentially biased jurors for cause strikes. Part II, entitled “The Untapped Power of Opening Statements” analyzes the three-step opening system: (1) eliminate the defendant’s favorite facts when you can; (2) own their favorite facts if you cannot eliminate them; and (3) put the defense’s favorite facts in context if you cannot eliminate or own them.
Part III, entitled “The evidence Phase: Keeping the Lead” is the shortest section of the book and stresses maintaining the winning structure erected in Opening so as not to lose your advantage. Part IV, entitled “Closing: Bearing Fruit to the End” is “aimed at maximizing the opportunity Closing provides to excise, once and for all, the bruises the defense has been trying to inflict and exploit throughout the whole trial.” It provides some additional systems on how to eddectively utilize note cards and presents some damages models for the reader’s consideration.
It is with this section that I feel compelled to interject a note of criticism. While I have been taught; and have utilized a model similar to the “Full Disclosure” damages model, one of the other damages model suggested is a “Per Diem” model. As we in Wisconsin know, however, utilizing anything close to a “per diem” argument is strictly verboten and grounds for a mistrial. To that end, the reader should make sure that any of the suggestions made by the author are acceptable in their jurisdiction before implementing them in their own personal injury “system.”
In the end, I would add this book to a long list of “must read” books that can certainly help with any lawyer’s ongoing development. I am confident that my mentor would agree.