Rebuttal of a closing argument can be one of the most difficult elements of trial for a plaintiff's attorney. It's your last opportunity to speak on behalf of your client and the last words jurors will hear from either side before they deliberate. However, the rebuttal's focus on a defense argument typically given moments earlier means you don't have the preparation time you have for your initial summation. In Van Zyl v. Fain, Keith Mitnik delivered a powerful rebuttal to the defense's damage argument, and ultimately won nearly $19 million for his client.
A rugby player and cook with dreams of becoming an executive chef, South African national Deon Van Zyl, 22, was rendered a paraplegic when a car allegedly driven by Daniel Fain struck Van Zyl while he was on his motorcycle. Fain admitted fault in the accident, leaving the amount of damages the only issue for trial.
While the parties disputed the exact amount of medical and economic damages, their focus in closings centered on non-economic damages, where Mitnik asked for up to $20 million.
During his closing, Fain's attorney, Dale Parker, implied the $20 million request was "arbitrary" and suggested Van Zyl's own competitive spirirt, exemplified by his post-inury swimming training, would minimize the impact his injuries would have on his life.
On rebuttal, Mitnik cast aside Parker's argument. "We don't diminish (a person's) suffering because someone has the spirit to be a fighter," Mitnik began. "The fact that (Van Zyl) has the will and the spirit and has made up his mind 'I'm going to do the best I can under the circumstances' doesn't diminish (the fact that) every day he gets up with (his injuries). And will for every day for the rest of his life, and every day he's awake. No break: any hour, any minute, any time."
Mitnik's passionate rebuttal hammered at the suggestion of limiting pain and suffering damages based on how Van Zy faced his life following the accident, while highlighting the impact og his injuries. His final words to the jury set the stage for an $18.88 million verdict that included $16.5 million in non-economic damages.
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