Keith Mitnik: Why Great Trial Lawyers Never Paint by Numbers

Many defense lawyers are outstanding presenters and quick on their feet, but Keith Mitnik says they’re painting by numbers: they have a set strategy and go-to arguments. But if you can knock them off of their paint-by-number strategy, they’re lost. So how exactly do you counter their tactics?

After practically living in the courtroom, Keith understands the ins and outs of a trial more than the average lawyer. He’s heard all of the same arguments before and knows exactly which slimy (and often overused) tricks the defense counsel will use against him.

Instead of letting the defense counsel’s repetitive arguments win over the jury, Keith figured out a counter method. And this method doesn’t just work for one or two cases — Keith crafted a cohesive system where any lawyer, no matter the level of experience, can make a difference in whatever case they may be facing.

One of Keith’s strategies is the power of analogy. Using analogies in your counter arguments can help the jury better understand the situation by pulling examples from their own life. Take this case for instance: one young guy had to get surgery for a herniated disc. After the surgery, it might look like he’s not hurting anymore, but in reality, it takes extra effort and care to maintain a somewhat normal life. But how can you make the jury see it from that point of view?

Keith did so by using the analogy of a crick in the neck. This common problem isn’t life-threatening, nor is it visibly painful. However, it can disrupt daily life in ways that you wouldn’t wish upon anyone. A jury might not be able to empathize with a herniated disc, but most of them can empathize with a crick in the neck.

What other strategies can help you avoid common tricks and win your case?

Listen to this episode of The Judd Shaw Way Podcast with Judd Shaw featuring Keith Mitnik, Senior Trial Counsel at Morgan & Morgan. Keith tells all about his lessons from the courtroom, how to counter a paint-by-number defense counsel, and why he wrote two books about his successful methods.

In this episode:

[0:37] Judd Shaw introduces his guest, Keith Mitnik
[1:23] Why football is an integral part of Keith’s life
[2:55] What led Keith to write his first book, Don’t Eat the Bruises?
[7:14] Keith’s thoughts on the “straw man argument” — and what he does to counter it
[9:14] Why analogies work so well in the courtroom
[12:52] Keith shares the story of winning a $6.4 million verdict on a herniated disc case
[14:53] Keith and Judd discuss what an inspiration Matt Morgan is
[17:43] Keith talks about his most recent book, Deeper Cuts
[19:54] Where can you get Keith’s books, and how can you gain access to his latest tips and strategies?
[23:43] What’s on the horizon for Keith?

Transcript

Welcome to the show. I’m your host Judd Shaw. Here with me, Keith Mitnik, senior trial attorney for America’s largest injury law firm, Morgan & Morgan. Keith isn’t just one of Florida’s most prolific trial attorneys. He’s one of the most renowned litigators in America, famous for his winning opening statements, high profile celebrity cases, and ability to reach the hearts of even the toughest juries. Keith has earned his reputation as the star litigator in the country. Keith, welcome to the show.

I’m excited to be here.

I read where you grew up, the game of football in your close knit town, it was the only game, it was the only show in town. And in fact, I think you referred to football as your identity.

I’ll tell you what it meant to me, is I think it gave me an edge, guys that are in the Marines and I was not, and I hear them talk or in any branch of military, they go through such grueling, grueling stuff to be part of the team. And football’s the same kind of thing. And you may not be doing something for the whole country, but it feels like it to your little town. So you work hard, you work for a team, you kill yourself on tour days, it’s hot, everything hurts, you’re bruised up and you just keep going.

And it teaches you a mental toughness of how far you can push yourself and I always feel in the trial because trials are brutal and it’s one o’clock in the morning and I’m tired and I’ve been working hard for a week and I want to go to bed so bad, but I know I need to do a little bit more to be ready for tomorrow. And I know my arse is staying up and getting it done. And I think it comes from that. I don’t know if I’d have had that, but suffering through that for the good of the whole and I always look across at the other guy or the other lady and I think, if you haven’t been through something similar, you’re going to bed tomorrow. I’m going to get your arse. So I think it gives you an edge.

I read your good friend, John Morgan’s book, You Can’t Teach Hungry. You Can’t Teach Vision, amazing books on the principle of growing and running a law firm. But you have to win the cases too. And that’s what led me to read your first book. Don’t Eat the Bruises. I think it was published in 2016.

Yeah. That sounds about right.

What led you to write it?

Well, I had wanted to write it. I have a unique job in that I no longer work cases up. I paid my dues. I worked a lot of cases up over the years, but I don’t and I have them for years. I just try them and it’s a different perspective when you live in the courtroom than because what happens is you go to trial and you have all these great ideas that come out of for the next trial. But the next trial’s a year, year and a half later and things get forgotten and lost because I’m out there sometimes every week. But certainly every month, every two weeks in trial. When I have a thought, I get to try it out and the good ones, I keep the ones that didn’t work, I throw out and I started amassing a lot of keepers and I really believed I was so fortunate to have a great mentor and I wouldn’t be where I am, but for the person who taught me and I thought, not everybody has that opportunity.

And I have a unique opportunity to try things that I’m a natural thinker. And I thought I got to share these with as many people as I can to play it forward, whether they’re young and you’re a mentor or they’re older, more experienced, but they aren’t in the courtroom as frequently as I am. And I thought I want to get it out. And so I was accumulated all with the idea of writing a book, but I had no idea how to get a book published. I was going to do that when I finished the book, I hadn’t gotten there yet. And I get a phone call out of the blue from Rick Friedman. And I didn’t know Rick at the time. And the phone rings say, “Hey, this is Rick Friedman.” I didn’t put two and two together. I’m in Orlando. he’s out in Seattle.

And I said, Hey, Rick,” like I knew where he was, I was just faking it because I didn’t want to be rude because they act like they knew me. And he goes, “Listen, I’ve been listening to your stuff and seminars. And I really think you ought to write a book. Trial Guides need some fresh people. So it isn’t just the same folks all the time writing. And I’d love to hook you up with the owner of the publisher.” And I said, “This is Rick Friedman, Rules of the Road.” And he goes, “Yeah, I thought you knew. And we laughed. And since then he and I are friends. I count him on my hand as someone I would, if he said, I need help tomorrow, I’d be on a plane tomorrow. But he opened the door, hooked me up with Trial Guides and Aaron at Trial Guides. Who’s a fabulous guy and a great trial lawyer in his own right. And that’s where it came from.

I found that book to be that there are these go-to arguments that the defense council will use against you. And what was so helpful is in the jury, the defense is going down that way. And they’re talking about your client. They don’t look that pained. They, they don’t look like that. How are they hurt? They’re not deserve of this money. And then you go, “Wait, I’ve heard this before. Now I have something to counter that.” And that’s the book of these, they’re like strategies to go against these common things that the defense is using. Yeah.

Dead on. That you are very astute. The whole idea is because I in there so much, we all know it’s repetitive. You go try three in a row in a month and you’ll see just how repetitive it is. And I sit there in a courtroom and go, “Well, this is not even a fair position.” But I’m watching it work. And I thought, okay, if we’re right and they’re wrong, there is a way to stop it. And so, and I’m not good at a whole lot of things, but I’m a good strategist. So I would look at it, think about it. And I’d say, “I know how to shut that down.” And suddenly I’m shutting down all of their stuff. So I decided I don’t want it to just be one off strategies because they’re hard to remember, they’re hard to reuse.

I want to make it a cohesive system that you can drop down in any case, any lawyer and make a difference. And so that’s where the whole I learned and learned and pieced and pieced. And then I decided I don’t want a bunch of threads, I want a tapestry. And I really believe, I always say this about most defense lawyers. Sometimes I face the defense lawyers, very good on their feet. Most of them are good presenters, but they’re painting by numbers. If you can knock them off of what they’re used to, they’re lost. And I always say, “The best trial lawyers, don’t paint by numbers, they free hand masterpieces.” It’s the art of outsmarting. The fun part that sets you apart.

Right. I have to tell you, I have a favorite and I’ve always, I mean, I’m so grateful I’m here in the presence of a legend really. And Belittling Pain. It’s just, it was one of my favorites. It just made so much sense to me. Where did you come up with that?

Sitting in a courtroom and I’m thinking, “You know what? They’re showing a surveillance that doesn’t show my client doing a single thing different than what he said.” They’re showing Facebook posts, smiling and having fun in life. And you’re cringing because why? And I sat there and thought, why am I cringing? It’s not fair. And why is the jury taking notes? It’s not fair. And it dawned on me, because they’re creating a false argument. It’s called a straw man argument. They say, “If he doesn’t look hurt, he must not be hurt.” But it’s a straw man argument, because they’re right, he doesn’t look hurt. They’re going to win it all day. But it’s not the right argument. It’s a hollow argument. This is not the kind of injury that you can assess from looking at it on the outside. But guess what? So is having clogged arteries that could kill you.

It doesn’t make it less serious. It just means if I’m going to assess it, I’ve got to assess it from an internal perspective. And I’ve got to assess it from looking at the big picture of circumstances. Now, if he didn’t have the pain before, he gets in the crash and it starts and it never goes away. And I got an MRI that shows it and MRIs don’t lie and the jury can see it with their own eyes, who gives a that he still smiles, no one said this injury. And that’s why I talk about things like, this isn’t cane pain, it’s pilot light pain. And suddenly jurors going, “Oh.” And as soon as you teach the jury, that’s proving nothing. It doesn’t mean he is not hurt, it means they’re trying a different case, they’re trying a wheelchair case. This isn’t a wheelchair case. And once that light went on the whole thing about putting an end on a little belittling pain started coming to me in waves. And I just was giddy because I thought never again I’m going to let you have that work.

Right. And it’s the simplicity almost of it too. The crink in the neck, the hallelujah. There’s no hallelujah for that client. It just made so much sense to me.

You have been reading my stuff.

Yes I have.

But you know why that hallelujah works so good. This is the underlying, I’m big on, I love to teach people new systems and things and strategies. What I really love is for them to understand how I came up with it and why because then they can expand this and send me an email, I get them all the time. I came up with. So and so, and I use them. So once you learn the underlying process I used to come up with it, now, the sky’s the limit. So what is the underlying process for that? The idea was I want… We know we can’t golden rule, we can’t say what if it was you? Analogies are a thing of beauty because analogies allow you to permissibly, legally use what is a golden rule because the whole purpose of analogy is to give an example of something someone’s done themselves so they can understand it.

But defense use it, judges use it, so there’s nothing wrong with it. So the minute you go through that crick in the neck story, every juror is going to have had it happen. And every juror is going to relate with, “You know what? That sounds like a petty thing, your neck hurt a little, it was driving me batty. It was putting me in a bad mood. When it got to day three, I couldn’t take it. And then when I got to day four and it was gone, it was hallelujah.” Now, when suddenly you tell that story, jurors relate, I lived through it and they go, “This is a big deal.” And then you make the final distinction. My client will never have a hallelujah forever. Now they’re going, “What if it never went away?” And the last piece is, and this didn’t come because they slept wrong.

This came because someone thrusted in their life unnaturally by no fault of their own, he was minding his own business on the road. And someone who was being dangerous and unsafe, rammed him and changed it this way forever. And now jurors think, “You know what? That didn’t go away in three days, it was forever. And someone hit me and did it, it is a big, big deal.” And now suddenly the idea, also you heard, get out violins and hankies, big deal, people relate. And how did they relate? From a personal experience, that’s all that was. I sat around on my back porch thinking, what is an example everyone will get, where they understand pain, not takes in little teeny pieces, but over time takes a lot? And I was laying there thinking, well, I remember the last time I slept wrong, got knot, that’s it, that’s it.

It’s so true. I think that’s the only pain I’d never want to have again. That or your back and the way you describe it with driving to work or going to work. I pulled my back out and I went to work and I mean just a centimeter was killing but who am I complaining to?

No one knew. They’d have thought you’re a baby have said, I hurt her. And you know what else you didn’t do? You didn’t call in sick.

Right. Go to a doctor. I didn’t go to the doctor.

So it was the same thing. You didn’t anything because it’s not that kind of hurt. But if it didn’t go away and you’re rolling up on three weeks, you’d have been at the damn doctor’s office because it’d be bothering you. And so yeah, it doesn’t interfere so much with the doing as with the experience of doing, but that brings to life how pain has a profound impact on the experience of doing. Now we can look at them, see them fine, see them on the surveillance, see them here and all that is, there’s nothing inconsistent. You can’t see what’s going on inside, but you don’t have to take their word for it. Because we’re going to show it to you with the MRIs. Doctors are going to felt muscle spasms, the proofs there. And unless you think this guy’s the biggest phony or this lady’s the biggest phony in the world after they meet them hopefully they don’t think that, then they’ve gone through all this treatment that they didn’t go through before, you got to be kidding me, of course it’s real.

And that was also another part of the, Don’t Eat the Bruise. Which is the experience part of it. They’re like, “Well Jimmy was at the movie theater or Jimmy…” Okay. But he didn’t have the same experience. He can’t sit there. He’s all — he’s not enjoying the movie.

I try to, I say just time goes so fast. It’s probably been two years ago, Matt Morgan and tried a case and we got a $6.4 million verdict on a herniated disc case with a guy that had the percutaneous disc surgery-

Yeah. Discectomy.

Discectomy with no hardware. And everyone’s saying, “Oh, the case isn’t worth much.” He was a young guy. They had all of this, they had social media, he was a big rower. They were blaming his problems, it was a low back, they were blaming on, he’s a rower and he’s been a competitive rower, and they had a doctor tell me how that just wears the backs out. And after the injury, they got him winning metals, holding the row boat over his head with four people, they got him on surveillance taking up two 12 packs of beer under one arm, getting him out of the booze store and putting them in his trunk and must have been 30 pictures of him holding up glasses, cheering.

He’s a young guy in there out drinking, having a good time. But you know what? And so it looks like he’s not hurt. I told people, I said, “See all his buddies in those pictures. See all those friends, they’re all the same age. How many of them do you think have to get their nerves burned in their back in 28 years old. So they can go out and smile and laugh and have fun. How many of you think?” And they objected speculative. It didn’t matter. The jury got it. It’s like, nobody said he can’t smile for the rest of his life or go on. Nobody said he can’t row a rowboat. But the difference is now he’s on ice, on the car on the ride, home and a heating pad when he gets home to lay on it. And he’s getting on with life. He’s not… And I always say, “What would they have said if he was just laying around moaning and not rowing his boat? What would we hear then?”

Fake. He’s faking it.

So he’s going on with his life. And look, we respect people who buck up, don’t give up and they’re trying to turn it in to something to hold against him. Now you see why we need you.

Yeah. You and Matt have been crushing again in some of these, even in some counties that just-

I hate to say this out loud, because some-

You could say it.

We’re going to lose one, but Matt and I, I don’t believe Matt and I have ever tried one that we didn’t get a million dollar verdict on. I don’t know what it is. I love trying cases. He is such a young star. He’s not young anymore. He’s a full grown man now, but just because I’m 63, everybody’s young.

He’s the rising star, he’s the next legend.

You know what makes Matt, at his court he’s really smart. He’s got his dads smarts. He can convert them to practical just like his dad. But I’ll tell you what his real gift is. He has some of the most sincere, obvious empathy of anyone I’ve ever seen. You walk around with him in and out of court. People stop him because he see him in ads. He’s like a little star. I don’t care if it’s someone homeless. I don’t care if it’s a deputy here. I don’t care if it’s in a lunch, strangers, anyone stops, he stops and he talks and it’s not a put on. You can see him immediately interested in what they’re telling him in their lives. He is a really empathetic, big hearted guy and when you get around him, you feel it. And I think jurors feel it.

I had the privilege of meeting him once.

He also trained with some pretty good people. Under one wing he had Panish and under the other, he had me. So, and then he’s got his dad. Who’s dad that comes up with some of the greatest sayings for trials ever. By the way, John Morgan tried cases and was very good. He just was drawn to the entrepreneur side more. If he’d have stayed in the trial business, he’d have been maybe the best of all tie.

Greatest storyteller, great storyteller.

Oh my God, can he tell a story.

He is. But I had the privilege of, when I met Matt, I remember I met him at New York at TWA hotel. And I approached him and likewise thinking, stories, he was one of the keynote speakers at this event. And I said, “You know what? I’m just going to go and ask him about this case that I have, what are his thoughts?” And he stopped there and he was with his gorgeous wife. And-

I was there on that trip. We went to dinner.

… And he says to me, “Let me give you my email and send me the case. Let me take a look at it.” And I’m saying, “Okay, this is going to come back undelivered.” This is like me meeting a girl at a bar with a fake number or something. And no, he’s just great.

And he’s not doing it so somebody you’ll send him a case. He’s doing it because that’s who he is. He is just a… All their boys by the way, every one of them. People say, “Oh, they grew up, John Morgan, all that money, they’re all spoiled.” Those boys are the opposite of spoil. He is hard on him. He pushes them. He didn’t give them anything for nothing. They earned every bit of it. And every one of them in their own way are, are exceptional, exceptional.

So in 2021 you published the next one, In Deeper Cuts. And when I read Deeper Cuts, I read a lot of Don’t Eat the Bruises. I could read some of that strategy coming out. But what I got from it, it was like you took it to the next level, the process of how you go into trying cases. How’d you write that-

I tell you what, I’ve never seen you in a courtroom. I guarantee you’re good in the courtroom, because you’re you getting to the root of it quickly, that’s exactly my goal. There were new strategies in there. There was a whole section on med mal that I hadn’t written on before. And I do a lot of med mal cases that I love that. I get a lot of people liking, it’s a helpful section. I covered damages in the way I hadn’t before. So there were things in there that were just taking, Don’t Eat the Bruises systems to the next level. I’d say people, don’t say I’m going to get the new one and just skip the old one. It’s like the mainframe and this is an update that takes it to the next level. However, at its core, if I had to define it, you just defined it.

I decided with all the speaking I do and the feedback that I get from people that the best gift I could leave for anyone that will make me smile in my heart when I’m laying on my deathbed, will not be an individual strategy or even a system of strategies that intertwine, but the thought process that led to the creation of them. Because then people, if you really understood why I did it and you liked it, then it’s very easy to adapt it to your style and change it, and next thing it’s… I think of it like, you hear some rockstar, like Bon Jovi or somebody and they say, “Who’s your influence?” “Is Bob Dylan.” And you go, “What the hell? He doesn’t say anything like Bob Dylan.” But it’s in there.

So my goal is, I want you to know the creative process and someday I hope what you’re doing doesn’t look very much like what I did, but I’m going to be that influence that was the root. And you took it to the next level. Because I believe we just keep passing the torch forward. And I’d love nothing more when I’m older to look back and say, some of these people that I passed it on to have taken it to level I never did. And that makes me proud to see them because we’re all fighting the same enemy, which is injustice. We’re all fighting for a common cause.

Boy, have you paid it for Keith? You really have. I mean, if you’re a trial attorney out there and you have not gotten these books, you are really, to me, you’re shorting your client. That’s what you’re doing. Where do we find these books?

Go to Trial Guides, the first one Don’t Eat the Bruises, you can use a discount code that is Mitnik Morgan five. And by the way, if you don’t have the spelling, Mitnik doesn’t have a C like them first name Nick. It’s just M-I-T-N-I-K. Mitnik Morgan five at Trial Guides. The first one has a discount on it. The new one doesn’t and I apologize, they’re not cheap, but Trial Guides does a service nobody else does. It’s a small operation. They’re not making a bunch of money. They got to charge or they’re going to close the doors. So bear with them. They put out the best books out there.

Well, the content in the book is I think, valuable and worth the price.

Well, I appreciate it. And one more thing just before we go, for those of you that in addition, I would suggest you hit the books. And the reason is, I’m not out pimping the books. They’re best sellers. And I don’t make a lot of money off them. So it’s not buy him so I’m not embarrassed no one bought it. I was worried with the first book that could happen. Thank goodness it didn’t. The reason I’d say it is because I always talk to people and I go, “Good gosh, I didn’t tell it in this. And I didn’t believe this.” And it bothers me because I feel like there was so much more I could have done in the period of time. It gives me peace of mind to know you got all my good stuff there, but the most recent good stuff that I try to keep updating until the third book comes someday.

Is you can go to, if you email me at kmitnick@forthepeople.com it’s F-O-R not the number four. So K-M-I-T-N-I-K@forthepeople.com. And if you would please include my assistant Mary Arnold, and it’s just marnold@forthepeople.com and say, “I’d like to be on your list serve.” It doesn’t cost anything. I don’t get anything out of it. What I do, do is I send out the hottest, newest stuff that I come out in the last trial or so, as soon as I get a break, I type them up in a short one, two, no more than three pages. I call, At Home But Not Alone Brush Strokes. And I send those out and I’m up to 53 of them.

And I’ll catch up if you don’t have them, just say, “If you don’t mind, send me the ones.” And then you’ll be on the list going forward. And the other is, if you go to my, I have a website that is keithmitnik.com. That one is kmitnik@forthepeople.com, which is a email address. This is a keithmitnik.com. I also have audio podcasts that are little 15 minute strategy stuff. That again, at no cost, but you can click on those in people like to listen to them in their car and stuff. Because there’s quick down and dirty.

There’s a couple DVDs as well. DVDs, audible guides.

And they did do for people that I suffered through this, the Trial Guide asked me to read the book. They said, “We want to do an audio book. We’ll get a professional reader if you want, we’d rather you do it.” And I thought, “I don’t know anyone. They won’t know what to emphasize or not. It’s just too personal.” So I stood in a studio for three or four days. I mean hours on end with little 50 minute just reading it. It was brutal. And then I did it again for the second book, but I’m glad I did because I just don’t know that somebody that was a professional reader would know what they were… If you emphasize this and not that the meaning changes on some of it. So anyhow, they are out there on Trial Guides in a audio version.

And Mary’s wonderful. I emailed her and she actually emailed me the Belittling Pain Brush Stroke.

Yeah. People and that was an… People I get all the time from some other podcast, someone will say, “Do you mind sending me, you mentioned the Putting an End to Belittling Pain memo?” And I always say, “Yes, here it is.” But please consider getting Deeper Cuts because that was the kernel when I first started development, it’s going so far beyond that since then.

Yeah, it really does take it to that next level, that strategy. All right. So what’s next for the legend?

What’s next? I’m going to keep trying cases. I’m going maybe write another book. I got plenty ideas cooking. I’m not ready yet, but I’m going to try cases. And every time I have an idea that works, I’m going to pass it on.

Keith Mitnik, thank you so very much for coming on my show. I am incredibly grateful.

I am grateful you had me.

Thanks again.

🎙️ Meet Your Host 🎙️

Name: Judd B. Shaw

What he does: Judd founded Judd Shaw Injury Law (JSIL) and serves as the firm’s Brand Chief. He founded the firm on the premise that clients come first. Over the years, the success he attained for his clients helped JSIL grow significantly. Judd’s clients are not just another number to him or his law firm.

Company: Judd Shaw Injury Law

Words of wisdom: “At Judd Shaw Injury Law, it’s all about high-quality representation and excellence in client service. Our clients are counting on us to win and the stakes are high. Our endless pursuit for awesomeness through our core values, the ability to WOW our clients, is in our DNA.”

Connect: LinkedIn | Email

🎙️ Featured Guest 🎙️

Name: Keith Mitnik

Short Bio: Keith is Senior Trial Counsel at Morgan & Morgan and has been part of their team for over 25 years. In this role, Keith assists other members of the firm in their trials; as a result, he tries a number of cases each year. He’s been honored as a member of the Florida Legal Elite, Florida’s “Super Lawyers,” and Best Lawyers in America, among many other accolades. In addition to being a renowned litigator, Keith is also the author of Don’t Eat the Bruises and Deeper Cuts.

Company: Morgan & Morgan

Connect: LinkedIn | Website | Email

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