Reviewed by Ada K. Wong
Originally published in the April 2022 edition of Trial News, a monthly publication from the Washington State Association for Justice.
After a good series finale, you hold on to the hope that the producers will revive the show even though the series stands on its own. That is how I felt after reading Keith Mitnik’s Don’t Eat the Bruises a few years ago – wondering and hoping that he will author another great book. Like any great producer, he came out with another hit: Deeper Cuts. This book is meant to build on the foundation of Don’t Eat the Bruises, so I highly encourage reading that book first. Both books are easy reads, sprinkled with real world examples and excerpts. Deeper Cuts starts with a seven-page recap of Don’t Eat the Bruises, so there is no need to reread the entire book if you previously read it. Throughout Deeper Cuts, he makes specific references to Don’t Eat the Bruises, even noting the page or section to review for more information.
Deeper Cuts focuses on "systems that simply work, from winning workups to thumbs-up verdicts." Mitnik starts off by talking about the process beneath the systems and powerful new tools for trial. Then, he transitions into "Winning before Beginning," talking about "Wannabe Problems." Many plaintiffs’ attorneys focus on things that we think are problems in our cases – gaps in treatment, not a lot of property damage, and prior injuries – things the defense wants us to believe are case-devaluing problems. Don’t Eat the Bruises explores these so-called problems and how to frame them in our favor. Deeper Cuts takes it further and arms you with the tools for using these "problems" to your advantage to win your cases. This is one of the main reasons why I find Mitnik’s books so valuable. Even though I am in my 10th year of practice, I still find myself falling into my own mental traps of making "problems."
One of my favorite parts is his section on "Flashlight Words" – "words that shine a bright light on the thing you want to illuminate, like a flashlight pointing the way home." Mitnik writes: "You can use flashlight words on all kinds of issues. When a shady defense strategy works best in the shadows, put a spotlight on it. When you need to showcase or explain the law or controlling principles, illuminate them." He goes on to provide a number of specific flashlight words to use in various situations (damages, cross-examination, etc.) and includes excerpts of how they can be used in context. One example is: "It’s not about how much he’s going to get; it’s about how much was taken." This is a very powerful phrase because every case, regardless of the type of case, involves damages. That is the heart of the case – damages. He provides other examples of "Flashlight Words" for damages, but you will have to read the book for yourself.
Mitnik also addresses the common defense tactic of "False Framing" – blaming our client or others for the harm defendants have caused, and painting our clients in a false light. "False framing is about taking on and heading off a defense tactic designed to cast facts in a false light to make the defense look right when they are wrong. It spans all practice areas." The book uses many personal injury examples, but as an employment lawyer, I am choosing to share an excerpt from an employment case that he uses:
Wisdom of the Whys: Employment Case
Hefty salary = Ungrateful and greedy plaintiff
(Fact) (Wrong conclusion)
Hefty salary = Paying him what he’s worth doesn’t mean they can mistreat him
(Fact) (Right conclusion)
Circumstances that lead to the right conclusion: He is paid well because he is worth it. Paying him what he is worth does not mean they own him or have a right to treat him unfairly. He works hard and still makes time for his family. Overtime eats into his family time. If the company wants to take away from the family, they need to follow the law and pay for it.
This is very powerful for cases where jurors may not be able to relate to highly compensated plaintiffs.
The bulk of the rest of the book covers depositions and medical malpractice cases. Mitnik gives us pointers on deposing defense witnesses and experts, as well as preparing for our clients for their deposition. He then dedicates three chapters to medical malpractice cases. The book ends with a section about trials during COVID-19, which is undeniably timely.
Although Deeper Cuts is tailored more towards personal injury and medical malpractice cases, I am easily able to implement and adapt many of his concepts into my employment and civil rights cases. I think that if you are – or aspire to be – a great trial lawyer, this book is a "must read," regardless of your practice area. His two books are at arm’s reach in my office.