In chapter 6 of his book, Deeper Cuts, trial lawyer Keith Mitnik shares an example closing argument he gave in a car crash case that resulted in a 7-figure win for the client. He breaks down how the argument demonstrates his approach to trying cases, and how lawyers can:
- Ask for full justice (and nothing less) in closing argument.
- Establish the dignity of damages.
- Put an end to defense’s tactic of belittling pain.
- Have the audacity to ask for full value.
- Work the process he teaches to achieve maximum American justice.
Mitnik writes:
This is an excerpt from a closing argument in a case I tried with Matt Morgan before the COVID-19 shut down. It was a car crash case. The injury was a herniated disc that ultimately resulted in a micro discectomy. Our client was in her thirties. The defense fought us on everything. They denied fault, blamed our client for the crash, claimed our client only had a sprain or strain, said our client had preexisting degeneration, and said the need for surgery was caused by a later crash that happened two years after the crash in our case, shortly before our client’s surgery.
The defense talked about treatment for neck pain before our crash and made a big deal out of social media posts, including one of our clients grinning from ear to ear at an amusement park on a pirate ship ride that swung back and forth, almost making a full circle. The defense called every kind of expert under the sun: a spine surgeon, radiologist, and accident reconstruction engineer. Here is the part of closing argument on noneconomic damages. The jury returned a verdict for millions of dollars, putting 100 percent of the fault on the defendant.
I want to give you an analogy about this kind of pain. There are injuries where someone really couldn’t get on that ride. They couldn’t go to work. They couldn’t walk. It truly was interfering in a great way with the activities of life.
And then there are injuries that interfere less with the doing and more with the experience of doing. And the experience of doing matters to people. Life isn’t all pleasure, but human beings treasure the pleasures of life. Life can be hard; and when an injury is thrust unnaturally into someone’s life by no fault of their own, it interferes with their enjoyment of life. With that kind of injury, someone can still go to the movies and enjoy it. But the experience is different, fidgeting and trying to stay comfortable.
I am “putting an end to belittling pain you cannot see.”
It’s like pilot-light pain. It’s always there, flickering. You do something and it flares.
She was in a long period of flareups and had surgery. Surgery brought the level of pain down significantly. Now, it’s coming back. She lives her life somewhere between flickering and flaring up. Even when it’s at the low point, when it’s just discomfort, she can sit in the movie theatre and still enjoy the movie but it’s a different experience because it’s there in the back of her mind.
Someone can go to a religious ceremony and get a lot out of it, but they can’t wait to get outside and move because it’s uncomfortable. The person with this kind of injury can still go to a sporting event, heck, people can participate in sporting events, but they have to be careful or they’ll pay a price.
They still go to work. They still can play with their child. They just have to do it in a different way. That is the reality of pilot-light pain that can flare. It impacts their quality of life. We know that impact matters because one of the instructions that the court gives you is that you shall consider as one of these elements of damages, enjoyment of life.
Now I give the authority of the law to this argument of interfering with the experience of doing.
It’s actually authorized by the law because it does impact the quality and enjoyment of life. We call it human damages. There is pain, and then there’s the enjoyment of life.
Now I move into the fact this is a permanent injury.
You heard it was permanent from Dr. Carpenter and from the surgeon that actually operated on her. Common sense tells you permanent just means at this point it’s not likely to go away, and it’s not. She’s had surgery, and the pain is coming back. She had injections. It’s there. It’s been too long now to say it’s going to go away.
So, you take the reality of that, recognizing that this is a verdict for all time. Today is as good as it’s going to get for her in all likelihood. As the aging process overlays on top of those damaged links in her vertebrae, in her spine, two of them, it’s only going to get worse. And the spine doesn’t get a day off.
You want the jury to realize this kind of injury will get worse over time and this is a verdict for all time.
The spine is always in play. It’s always being used. And when the aging process overlays on top of those damaged links in her spine, it’s just going to get worse. And then you end up with it interfering even more with the “doing,” in addition to the experience of doing.
Then you end up with discs having to be fused. And we don’t come back and redo this trial, this is the verdict for all time. We don’t come back in twenty years, thirty years, forty years, or fifty years. I mean, look how young she is. We’re talking about a life expectancy of over fifty years.
This is me preparing to make a per diem argument. But first, I want to use an analogy that everyone understands to really bring home the toll this this kind of low level, persistent pain takes—even though you can’t see it from the outside.
It’s like someone who slept wrong and woke up with a crick in their neck. Every little thing they do, it’s there nagging. Picking up a briefcase, changing lanes, it’s there. He gets to work, sitting is uncomfortable. So he gets up, soon that’s uncomfortable too. When he gets home, his wife asks, “How are you doing?”
He says, “it’s not gone.”
She says, “maybe you got to go to the doctor.”
He says, “I don’t need a doctor.”
He gets up the next morning and tells his wife, “I was hoping it would be gone.” Same thing all day. You know what he didn’t do? He didn’t call in sick. You know what else he doesn’t do? He doesn’t walk around the office complaining or acting like a big baby. You wouldn’t know he was hurt. His wife knows. They have an intimate relationship.
He comes home in the evening cranky because it’s wearing on his nerves. He’s short with the kids. His wife says, “What’s the matter?”
He says, “Sorry, this thing is really getting on my nerves.”
She says, “Maybe you better go to the doctor.”
He wakes up the next morning. His wife is brushing her teeth and hears as he says, “Hallelujah.”
His wife asks, “what?”
He says, “It’s gone.”
This kind of injury is just like that except there’s no “hallelujah.” Ever.
To read the rest of the section and learn the underlying system that Mitnik teaches, including how he moves on to noneconomic damages (including the damages chart he used in trial) and links back to voir dire, order your copy of Deeper Cuts: Systems that Simply Work from Winning Workups to Thumbs-Up Verdicts.
