“People either step in and try them and don’t truly know the science and everything behind it, or they know the science in their sleep, but they don’t know how to track a case with it. And it takes both to do them right.”
Keith Mitnik
Strategic Insights from Renowned Trial Lawyer
In this episode, Tom sits down with renowned Florida trial lawyer Keith Mitnik, who has tried hundreds of cases across the country. Keith explains why successful TBI trial lawyers must master both courtroom skills AND scientific knowledge. He reveals why traditional trial skills alone aren’t enough. He discusses his unique approach to client preparation, the critical decisions about courtroom presence, and why the traditional trial playbook doesn’t work for TBI cases. Keith also introduces his innovative “stages of life” framework for explaining brain injury susceptibility to juries.
Key Takeaways
Why mild TBI cases are uniquely challenging and defense attorneys are happy to “invite you to court”The critical difference between knowing trial skills versus knowing TBI science, (you need both)Client preparation for TBI cases requires the opposite approach of other injury casesStrategic decisions about client courtroom presence can make or break your caseUnderstanding brain injury susceptibility across different life stages provides powerful trial narrativeTBI Trial Strategy Fundamentals with Keith Mitnik
Intro Bump
Keith Mitnik: So here’s something I’ve learned. People either step in and try them and don’t truly know the science and everything behind it, which is unique. It’s not like a car crash herniated disc case. It’s a total different set of knowledge. People go in and they rely on their trial skills, but they don’t really know the data and they don’t really know the science, or they know the science in their sleep, but they don’t know how to try a case with it. And it takes both to do ’em right.
Narrator: TBI cases can feel like navigating unchartered territory. Your client’s injury is real, but proving it, that’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place.
Welcome to winning the TBI case where Tom Crosley shares the insights he’s gained from over 60 injury trials, not just the victories, but the lessons learned along the way that make all the difference. This is practical wisdom from someone who’s been in your shoes and found a path forward winning the TBI Case: strategy, science and Storytelling.
Episode
Tom Crosley: Welcome to Winning the TBI Case. I’m your host, Tom Crosley. We are blessed today to be joined by renowned trial attorney, all the way from Florida, Mr. Keith Mitnik. Keith, how are you today?
Keith Mitnik: I am great. I’m glad to be here with you.
Tom: You’re a lawyer who’s tried hundreds of cases all over the country. Some of those cases had to be TBI cases.
Keith: Everything from very serious ones to mild traumatic brain injury.
Tom: I’m a lawyer who’s written extensively on TBI. I talk about it, I study it, read papers, look at scientific articles. But what we could all benefit from is learning from lawyers like you who’ve tried several of these cases to learn what works, what didn’t work, what should we be trying to do, and what should we should under no circumstances do. I think that advice ends up being a little different depending on the type of TBI case.
Keith: First of all, they are unique cases. I’ve tried hundreds of cases of every kind imaginable, and they are some of the more difficult, the mild traumatic brain injuries. The big brain injury cases, if you’re trying it, it’s probably a big liability fight because they’re scared of the damages. But if it’s a mild traumatic, my experience is they’re happy to fight you in court because they know it’s threading the needle to prove your case.
So I think the service you’re doing with this is outstanding, because here’s something I’ve learned: people either step in and try them and don’t truly know the science and everything behind it, which is unique. It’s not like a car crash herniated disc case. It’s a total different set of knowledge. People go in and they rely on their trial skills, but they don’t really know the data and they don’t really know the science. Or they know the science in their sleep, but they don’t know how to try a case with it. And It takes both to do ’em right.
So I know you personally to be a great trial lawyer, and I didn’t know that you had really focused on learning all the science and information with it. Blending those two together is a really unique skill. I’m looking forward to answering questions with you, but I’m also looking forward to learning some stuff. You may give me some tips that I didn’t know.
Tom: All right, let’s talk about that. Do you have a trial strategy for it already? And if so, can you share it with us?
Keith: I have designed some stages, I call it, of life that I think will help a jury understand. And I say I’ve designed them. It’s not made up without validation scientifically. I’ve just attached labels to it.
And the idea is, when someone is in an infant stage, their brain is at its most susceptible to the shaking-type injuries. We’re not talking about an orthopedic injury where you need a car hit hard to cause an orthopedic injury. As you know, it’s the shaking around or the twisting and the brain moving around. An infant’s brain while it’s forming is very vulnerable to those kind of forces.
Then people move into their next stage of life and they’re in their teens and 20s and 30s. And in that stage of life, that’s when they play football. And that’s a part of the problem with these cases. Everybody knows these people are ramming heads, and if they get their bell rung, they’re back in a few weeks after going through protocol. So how could you have a lifelong injury from this crash where you didn’t even hit your head? And so it’s a disconnect to the jury. Well, they understand in that phase of life when the brain is most resilient to those forces, that’s when people have more physical violent activities they participate in.
And then you have the long haul from 40s to 60s. And when people are in the long haul, they’re still pretty stable, but no one’s recommending they go play tackle football anymore. They’re starting to get a little more susceptible. Now move to 60. the end stage. Now you’re on a decline. It’s a gradual decline, but from 60 to the end of life there’s a gradual decline in the brain. And when that gradual decline happens, they are not back to infant stage, but they are much more susceptible. So you look at a car crash and it doesn’t look like it tore the car up and it’s totaled, it doesn’t mean it didn’t rattle the brain around enough to disconnect some of the wiring and they end up with a lifelong injury.
So that’s kind of the design to take a trial lawyer’s mind and apply it to some of the science. And that’s why someone like you that really has studied and done it does their client a great service, because you can’t step in and put these cases together like anyone.
Here’s a perfect example: You take a client, you work them up, get them ready to be the world’s greatest witness, and they get up and do everything perfectly. But guess what? They don’t look brain damaged. Because we hate clients getting up and giving dumb answers, so they give their smartest answer and remember everything because you worked and worked and worked with them and you took them beyond what their natural capacity was and you made them look unhurt.
But if you put them up and just let them do what they want, they can come off like, “Well, this person is putting it on. No one can be that bad at answering questions.” So trying to thread that needle is hard and you can’t help a client who has no clue unless their lawyer understands it. And that understanding doesn’t come because I’ve done a whiplash case.
Tom: I wrote a paper on this subject once where it was how do you prep a TBI client for deposition or trial, and more importantly for trial. My answer is: you don’t.
Tom: You just want them to come in and get surprised and catch them on an ordinary day in their life. Because no one preps us for every single day of our lives and we don’t want to show up rehearsed. I would rather that client look like a deer in headlights if that’s their natural reaction to being asked questions.
Keith: And the other thing is, I know you know, I believe in a lot of car crash orthopedic injuries, if your client is a terrible witness, I wouldn’t do this. But if your client is believable — even if they’re not all that likable, but they’re believable — I want to get them up first. Because then the jury hears them and goes oh, all this stuff they’re saying that you’re faking your pain, the jury goes, “I think they really are hurt.” If you don’t put them up first —and by the way, if the jury believes them, now the defense lawyer looks like they were misleading the jury. Now when your doctors come and say, “Yes, I’m relying on their subjective complaints” the jury says, “What’s wrong with that? I believe them, too.” If you haven’t put them up, they hear all that and go, “Well, I’m going to have to wait until this doctor’s long gone to decide whether those subjective complaints are believable.”
So I’m a big proponent, unless they’re a really bad witness, to get your client up first, except in a mild TBI. That’s the worst thing in the world because with the jurors, there’s no winning. If they do a good job, they say you’re not hurt. If they do a bad job, they say you’re full of nonsense. There’s only way to put them on and that’s after you’ve taught the jury with the science and the before-and-afters. And they go on late and now whatever they do is okay.
Tom: Absolutely, I 100% agree with that.
Keith: But that’s 180 degrees different from most other cases. People who don’t try TBIs don’t know that. They would just say, “Well, let’s get them up.”
Tom: Yeah, it’s such a subtle injury that it requires other people in their lives, plus expert doctors, to explain how this person looks normal but isn’t normal. Then, by the end of the case, once you’ve convinced your jury, hopefully, you bring your plaintiff out as short as possible. That’s usually my M.O. in these cases.
Keith: And then a good defense lawyer will keep them up forever
Keith: But if you’ve prepped the jury and taught the jury from jury selection to voir dire through opening and started parading the right witnesses in, let them keep it up. Now they reach the point of making a mistake.
Tom: What do you think about having the client in the courtroom for a TBI case? And maybe your answer is different depending on the level of severity of the injury.
Keith: That question is one of the hardest questions. In every case I walk into, it seems I get asked it. And my answer in every case is it depends on the case.
Keith: Because I don’t know the right answer. I know it is one of the most agonizing decisions I make in any case. You always worry if they’re not there, the jury’s going to say, “I got to be here. Why can’t they be here?” And if they’re still working and still living their lives: “Well, they can live their life. They can’t sit int he courtroom?” That’s a problem.
On the other hand, they’re going to be watched the moment they walk in and the moment they leave every day, and that’s a no-win proposition. They’re not ready to meet them yet.
If they’re in a wheelchair and they got, you know, drooling and it’s a horrible, serious one, that’s an easy call. I don’t want them in the courtroom during jury selection, because you’re going to run off too many people for sympathy. I want the power of them coming in at the right time and no one’s going to fault them for not being there.
The mild traumatic, I’d rather have him out of court. I had a federal judge and it wasn’t a mild traumatic brain injury; it was a burn case. But I didn’t want to have the client in there and the federal judge says he’s got to be here. I had no choice. Made him.
Tom: I’ve never been requited to have the client present.
Keith: I brought it up. I said, “Just as a courtesy, Honor, I just want to let you know.” He said, “What do you mean? The other side objected” I said, “I’m out of town, on pro hac. I don’t want to be uppity, but on what authority?” And he said, “Mine.”
Keith: So guess who showed up?
Tom: So one thing I’ll sometimes do in a TBI case is create authority for why the client shouldn’t be there. It’ll be a doctor who says psychologically it’s not going to be good for them to listen to all this.
Tom: It could be an expert. It could be, you know, both of those things. But I’ll usually have that seed planted early enough and where I’ll voir dire on it, so the jury does not expect the client to be there. They just expect them to be there for their portion of it, and that it shouldn’t be good for them — it won’t be good for them if they have to sit through the whole trial and listen to all these people talking about how they’re different now.
I know you’re an expert on voir dire. You travel the country teaching lawyers how to do voir dire, as we say in Texas.
Keith: I tried it and felt like a phony, so I quit trying it.
Tom: All right. We’ll call it “jury selection.” So when it comes to jury selection, what do you do differently if it’s a mild TBI case compared to any other type of case?
Keith: Well one, if they’re not going to be there, I do… Now, some judges will not let you say why they can’t be there, but I’ll say they will not be here the whole trial. You’re going to get to meet them, and you’ll hear why later at the appropriate time, but is anybody going to have a problem with them having to be here? You know, that they better be here and if they’re not here, then that’s going to create a bias in you? And I’ll ask that
But other than that, and if I’m allowed to say because you’ll hear it’s not good for them, I of course will put that in there. But beyond that, I will ask questions about if anyone’s had any experience with them. I ask questions about if anyone has any experience or training on the different degrees of brain injuries. And I weave into that an explanation that a “mild” traumatic brain injury doesn’t mean that it’s not a big deal. I’ll put a pin in that.
I like when I explain the different degrees of brain injury, I start with the worst. That may sound counterintuitive, but if you start with the word “mild,” it’s hard to get that. It gets sticky. It sounds like not a big deal. Now you’re trying to explain it away.
I’d rather start with a point they’re severe and explain that somebody who’s in a — probably in a home somewhere can’t even care for themselves. In moderate, they would be very obvious. If you talked to them, you would know in a moment. They are not all there. They’re not all right. They may be able to live alone, but they are very outwardly obviously hurt. It’s a matter of severity, the amount of brain bleed, the amount of harm. And then there is what they call “mild” is we’ve already talked about severe and moderate. Where else are we going to go with it? But nobody who walks in this courtroom from either side is going to tell you a mild brain injury is no big deal. It is. It just feels better stepping it down.
Tom: I’ll throw something out there. It’s like a mild case of cancer.
Tom: That’s kind of the way I like to use it.
Keith: That’s very good. Not heard that anywhere. That’s good. I’m going to take that.
Tom: Yeah, you should take it.
Tom: But the “mild” is the label they give it in the first 24 hours. That’s all. It doesn’t tell you how they’re going to do two years later. So there’s lots of interesting ways to deal with those issues in voir dire, but I think jury selection in a mild TBI case is one of the hardest there is.
Keith: Give me a couple more of your hot ones.
Tom: Well, OK. A client’s not gonna be in the courtroom if I can help it. Not even close. Now, fortunately it’s much easier now in the post-2010, post-NFL concussion settlement. You know we have, uh, everybody knows based on media that things that happen to your brain in your youth, the injuries that happen in your youth can have long-term devastating consequences as you age with those injuries.
We know this now. We didn’t know it 20 or 30 years ago. When you played high school football, you probably got your bell rung.
Keith: You didn’t hit with the top of your helmet, you were on the bench.
Tom: [laughs] And coach said, “Rub some dirt on it.” and sent you back out or something like that, right?
Keith: You throw up and get back in. If you throw up twice, you’re a baby.
Tom: And so now we all are conditioned, thanks in large part to media, the studies that came out after the wars in Iraq and Afghanistan where the signature injury of those wars was mild TBI, we were conditioned to better understand the potential significance of these injuries. That doesn’t mean most of them are going to be significant; it just means that they are potentially significant.
Tom: We were talking about mild TBI and, when it’s time to pick a jury, why it’s so hard to pick the jury in those cases. So, client probably not in the courtroom if you can get away with not having them in the courtroom. Do you agree?
Tom: All right. What about what do you do about the fact that almost every single person on the panel has at some time hit their head hard enough to have concussion symptoms at some point, but got well? What do you do with that?
Keith: I can tell you the one thing I do, is I try to get experiences either from someone who works in the field or someone who’s known someone or been through something themselves. Then have them talk about it. And in that hopefully you get a juror can add it in and if not I add it in, that the reaction to it can be completely different. One person walks away and never has another problem from it. Another person has it and they see consequences years later. Another one sees consequences much more frequently. And it’s not necessarily about the severity of it. There’s a lot of difference in it and it just depends from individual to individual. Some people have more susceptibilities. It has to do with their age. It has to do with the positioning, how much trauma was involved that you couldn’t see form the outside. Not the amount of damage to a vehicle.
I would like to have that conversation, but it’s not necessarily one that you can drive in that direction. And as you know, you can’t just turn it into a lecture or you’re going to get shut down in your pre-trial case. So I think it is a very difficult area to do. In my openings, I try to do it through experiences of people or knowledge they have through training or of a loved one. But that’s a hit or miss proposition.
Tom: Thank you, Keith, for sharing this information about trying mild TBI cases. Is there any kind of final advice you would give a practitioner out there who’s looking at maybe trying their first one?
Keith: Honestly, the best advice I can give is, and I don’t want to sound like I’m trying to throw you some friendly comment: they’d be smart to call you or someone like you, who’s tried a bunch of them and has turned it into a true subspecialty and learned. It’s a mistake to wade into it thinking it’s like any other case. They’re not.
And I know you want to do what’s right for your clients. Don’t let them be they person you learn on. Get with someone who knows it and make sure you know it. It’s the right thing to do.
Narrator: Next time on Winning the TBI Case, we’ll dive deeper into TBI cases with renowned trial lawyer Keith Mitnik and discuss what makes mild TBI cases so unique when preparing them for trial.
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