We are often met with the defense that the thing that injured our client had never injured anyone else. That assertion carries with it the inherent suggestion that not only was the defendant no negligent, there had to be contributory negligence as well. The defense raises issues of foreseeability, causation, and contributory negligence. I don’t have a silver bullet response, but here are few thoughts to consider in dealing with this defense.
- August 15, 1992 Two Australian tourists were killed while hiking in the Alps because a WW One bomb went off. Authorities believe, it went off when one of them accidently hit it with an ice ax while climbing. Many other people had hiked through the same area without striking the bomb, but that doesn’t mean there was no risk of harm. It only means that it was a tragedy waiting to happen sometime if not remedied.
- The issue regarding hazards is whether the likelihood of harm is inherent in the condition and is within the realm of reasonable foreseeability. If it is, a defendant is not entitled to wait until the first victim is injured before having a duty to act. The law doesn’t give a defendant a three strikes before you are out immunity. The question is the probability of harm coupled with the gravity of the likely damage.
- Saying it never hurt anyone before is like a drunk driver who finally causes an accident and says, “But I drove for miles without huring anyone else” Thousands of highway deaths and injuries are caused by drunk and negligent drivers who never hurt anyone before the accident that kills someone. Sooner or later every careless driver is going to claim a victim. The law doesn’t care how many times it happened before where there is a known danger and a failure to fix it.
- Consider General Motors who in 2014 recalled 3.37 million cars at a cost of $2 Billion dollars due to faulty ignition switches that could shut the engine off and prevent airbags from inflating. Out of the millions of cars sold there were a total of 31 crashes. Millions of drivers experienced no problem, but there was an inherent defect that did exist and which killed 13 people before the recall.
- “This Never Happened Before” is the name of a song from Paul McCartney’s 2005 album Chaos and Creation in the Backyard.
COMPARATIVE NEGLIGENCE CONSIDERATIONS
- Moe Levine’s argument: Consider this paper represents 100% of a perfect person. Now tear a little corner off a piece of paper and that represents 1%. There are no people who are 99% perfect and then there are ordinary people and all the law requires is ordinary care. If you tear off 60% you are below ordinary care and the average person’s conduct. It is important to remember there are no perfect people and we are only obligated to exercise average or ordinary care. The law is not unreasonable.
- The key question in evaluating conduct is: “Who was in the best position to know and do something about the hazard?” This was totally preventable. There was a simple remedy to the problem: remove the hazard instead of ignoring it waiting until the first person was injured.
The objective of a personal injury lawsuit for damages is primarily the damages. Yet, in my experience, this often is the most difficult part of summation for attorneys. How do you ask for the money I am often asked? We know that there is not one answer to this question and that it all depends upon the advocate as well as the facts of the case. Here is a simple outline of a general approach, but the important fact is the credibility of the advocate and the case issues plus jury impression control the outcome more than summation words. However, the jury is looking for guidance and direction from a credible advocate and you must always give them that guidance. Research has concluded you should suggest a figure for the verdict in every case. The amount of that figure, however, is subject to careful evaluation. In the damage introduction of the case I like to cover some basics by discussing damages in a general advocacy sense. I usuually cover these items:
- Reminder of voir dire discussion points: try the case on the basis of no sympathy for either party. Render a verdict for full justice.
- Burden of proof: instructions & explanation about the degree of proof required. In that discussion I like them to know we will make a rebuttal argument so it does not come as a suprise when we do so.
- Proximate cause explained with examples.
- The most important issue: what some of money fairly reasonably and justly is required for a full and proper verdict?
- There are two kinds of damages that are very different: ( 1) economic damages and (2) non-– economic damages. There are also two different time periods, past and future. Economic damages relate to the bills and reimbursement to hospitals and doctors and others providing care. Non-economic damages are the most important part of this case because they represent justice and not paying the doctors and hospitals. The scale has to perfectly balance with money on one side and harm suffered plus to be suffered on the other side. It is the equivalent of an eye for an eye in dollars. That’s what this case is all about.
- The non-economic damages involve separate and different factors and involve two time periods past and future:: ( 1) past disability and future disability (2) past mental and physical pain and future mental and physical pain (3) past loss of the enjoyment of life and future loss of the enjoyment of life.
- evaluation in dollars: (1) listing the economic damages with explanation (2) listing the past elements of non-economic damages with dollar figures and total (3) listing the future elements of non-economic damages with dollar figures.
- Comparing dollar evaluations to real-life examples. Explaining reasons why figures are conservative and reasonable.
The rest of the argument deals with general concepts about justice, the reason they are on the jury and the importance of the case both to them as well as the community. Here is a simple outline of this part of summation. INTRODUCTION
- justice is the reason we are here. We do not have the power to cure nor the right to inflict like harm on the defendant. Our system does not involve an eye for an eye or a tooth for tooth. It calls for money to equal the harm done as the only justice this jury can require.
- We only have one opportunity for justice here. The injured person cannot come back each year and report their situation to a jury for an annual evaluation. One verdict now and forever.
- To be fair it must be full justice. Not half justice. Not three quarters justice but full justice.
- There is a great and important principle involved here: what is the value we place on the right to pursue happiness without having injury inflicted upon us by the wrongdoing of others?
- This is an important case because you will set the value of this principle for yourself, the community, and the injured person.
RARE CHANCE TO DIRECTLY HELP ANOTHER
- This is a rare chance for us to directly help another person in a specific way. We go to the polls to vote but we do so with hundreds and thousands of other people and are one vote is simply one among hundreds. Here, however, your vote directly impacts another person’s life in a very direct way. Ssomeone who is entitled to justice.
- We will never again have this rare opportunity to touch another human being’s life and impact their future. This is a rare opportunity to exercise enormous power to determine another person’s future. It is a sacred trust the power to create or to destroy.
IT REQUIRES GREAT COURAGE
- Like all things of importance this will require an enormous amount of courage to do the right thing. The easier course is to duck the responsibility and work of evaluating the harm done in dollars. I am confident you will have the courage to render a verdict that will allow you in the months and years ahead, when perhaps reflecting back you think of this case, you can say to yourselves:” yes I am proud of doing the right thing and full justice in that case.”
- I know you will have the courage to render a verdict that will allow you to tell your friends and family you participated in establishing a principal about the value of human life.
A CASE OF STOLEN DREAMS
- This is a case of stolen dreams and the robbery of a person of what might have been. all of this could have and should have been avoided. What happened here was totally unnecessary.
- John Greenleaf Whittier wrote in his poem Maud Muller “God pity them both and pity us all, who vainly the dreams of youth recall: for all the sad words of tongue or pen the saddest of these are” it might have been.”
LOSS OF FREEDOM
- What has been taken away? The right of freedom has been stolen. He was free independent American who now has lost independence. He has health limitations. He has mobility limitations. He has a loss in his family and social life. He no longer has freedom of choice in all of the areas of life that he had before this tragedy.
LOSS OF DIGNITY
- There has been a loss of dignity. We all have a self-image and injury changes that picture of who we are. We all have roles in life. and injury changes our role which in turn impacts our pride.
LOSS OF CONTROL OVER LIFE
- We all have goals and dreams for the future. Injury steals these from us. We are no longer the master of our own ship. We are left in fear of the future instead.
- Injury changes are life forever. If a simple heading can rock the day of the sun injuries like these wrong one of control and peace of mind
RENDER A VERDICT FOR THE RIGHT REASON
- No matter how you decide this case it is important that you cast your vote for the right reason. I pray that you will find within yourself the courage to render a verdict which has been sanctified by your conscience, ratified by your reason and born of the sincere desire to see that justice has been done. I want you to be able to be proud of your verdict for having done the right thing.
- Joe, his family and I have placed our trust in your and we will be here waiting to hear your decision. We are in your hands. Thank you for your careful attention throughout this trial. Whatever your decision, we are grateful to you for listening to us.
I’m reviewing my notes about argument and decided I’d share some. These are just summaries and a mixture of concepts in raw form. You would need to expand and improve each of them, but maybe there are some ideas here that might be helpful to you.
- When this courthouse was planned they didn’t just pull a number out of the air for the cost of construction. Instead they calculated each of the items that go into the construction and added it up to determine the total cost. The same thing is true when we go to a supermarket to shop. The clerk doesn’t take a look at the items you put on the counter we collected and say “Oh, why not $120?” No, each item is rung up and totaled. We pay the total of each item. When an injured person comes to a jury for an appraisal of the proper amount to account for their injuries the same process should be followed. Each of the elements of damage should be weighed and appraised based upon how serious it is and how long it has and will last and not just pick some lump sum number that sounds right.
- While the total amount I have suggested to you for a verdict in this case appears to be a lot of money, and it is, we have to consider it the same way we consider buying our home by mortgage payments. Our payments are made monthly over a period of years and not just a lump sum paid all at the same time. I wish I could tell you that we could come back each year and report how Joe is doing to determine the amount for that year for his pain and disability, but the law requires it to all to be paid at one time so we have to fix the amount for now and forever in one verdict.
- This case is like a car that has been damaged in a collision caused by somebody else. However they don’t want to pay the full repair bill. In fact, they don’t want to pay anything and if they do have to pay it the only want to pay part of it and not the full bill.
- There has been talk here by defendant’s lawyer about the plaintiffs health and physical condition before the collision. He wasn’t in perfect health, who is, but he was functioning just fine. Suppose a farmer had 100 dozen eggs in the back of his pickup truck. Suppose they are all broken on the way to market because of another car crashed into his pickup.Now wouldn’t you think the defense lawyer in that situation would be out of his mind to argue you should not pay the farmer for the eggs because if they had been golf balls not one of them would’ve been broken. The defendant doesn’t have the right to make that argument. The defendant must take people as they are and as they find them. They are obligated to pay for the damage. Suppose they were not eggs, but it was a horse in the back of pickup. The question would be what kind of a horse was it? A plow horse or racehorse. Was it Nashua the day before he was sold for $1,200,000 ? If it was Nashua he was worth $1.2 million dollars. Shouldn’t the defendant have to pay the for the entire damage caused? But, what you say about oil painting that was destroyed in the collision and was worth $5 million? Doesn’t the same thing apply? The defendant is obligated to pay for the damage done, in full.
- Suppose a farmer is driving his old pickup truck and another car runs a stop sign it and damages the truck. The farmer is not injured but the fenders are bent and the windows are broken in his truck. The jury wouldn’t have much trouble determining the proper amount to compensate. You would say give him the kind of truck he had before it was in the collision. He’s not entitled to a new truck because it wasn’t new, but he is also not required to drive around with the truck with smashed up fenders and a broken windshield because it didn’t have that either. A fair result would be the cost of putting the truck back in the same condition it was before the collision. That’s what you need to do in this case.
- A hospital is supposed to be a place where we are safe and carefully cared for so we can get better. You’re supposed to be guarded. You’re supposed to be watched over. You supposed to be protected from any additional harm. This was not a hotel. It is a place that supposed to be staffed by people who are trained to watch over and attend to the needs of patients. When they fail to do that they have failed to do their duty. If a hospital is not prepared to treat its patients properly it should not admit the patients and take their money. If it does, it says to the people they admit that by taking their money and admitting: “you may come in and stay here. We are prepared to care for you and take care of you and help you become well again.”
- When life or liberty is in the hands of the lawyer he or she realizes the terrible responsibility that they have. They fear some word will be left unspoken or some thought will be forgotten to be said. I would not be telling you the truth if I told you that I did not fear the results of this important case. Not because of you but because of my failure to do what is expected of me. When my judgment and reason take counsel with my fears, I am even more afraid. (Clarence Darrow)
- There are hundreds of lawyers in this state and for some reason fate has picked me to be the one to represent this deserving person. I’m scared to death that I may not do it right. But, together, you and I are going to make history in this case by doing the right thing.
- your verdict means something in this case. It means more than the fate of this man. It is not often a case is submitted to 12 people where the decision may mean a milestone in the progress of medical care but this case does. I hope and trust you have a feeling of responsibility that will make you do your duty as citizens of this great nation and is members of the human family in this community and accomplish great things by your verdict.
- He was a fragile piece of china – a cracked vase. Nevertheless he was functioning until the harm that the defendant did to him took place.
- (Gerry Spence talking about representing the people who were objecting to drilling projects for oil in an environmental sensitive area of Wyoming) “Were going to drive the snakes out of the garden of Eden.”
- The smallest drop of water when constant can penetrate the hardest of stone.
- A fence at the top of a hill is better than an ambulance in the valley below.
- “So then, the eye cannot say to the hand, I don’t need you. Nor can the head say to the feet, well I don’t need you….And so there is no division in the body, but all its different parts have the same concern for one another. If one part of the body suffers, all the other parts suffer with it… ” (1 Corinthians 12)
- it is obvious that this is an injury not just to this plaintiff but to his family unit. You cannot injure one member of the family, particularly the head of the family, without injuring the whole family unit. It is like throwing a stone into a pool of water. Waves are sent out further and the waves get larger and touch the lives of people around the plaintiff. It affects the children and the wife and everyone they come in contact with. It puts a strain upon the emotional bond the family unit.
- The amount of care that is required by someone depends upon the circumstances. If you were loading potatoes into a truck and were throwing the sacks into the back of the truck, you wouldn’t be too concerned if you let a potato or two fall on the ground. On the other hand, if you were loading dangerous explosive material, think how carefully you would place it in the back of the truck and how carefully it would be stored. Both acts would have been done with ordinary care. Ordinary care in loading potatoes and ordinary care in loading a dangerous explosives are two different things. In this case the defendant was handling a dangerous instrument and should have exercised that amount of care that it called for.
- Don’t we all believe that: all men and women are entitled to be treated equally under the law; all men and women have a right to the pursuit of happiness; thrift and hardware should be rewarded; people should bear up under diversity to the best of their ability; justice should be available to everyone and if a man owes a debt they ought to pay it full to the penny.,
- Suppose you are shopping for car at a used car lot. The salesman tells you that this car that he’s recommending was in a wreck, the frame was bent and it was damaged but now it’s all been straightened out and everything has been fixed. Even though the damage been repaired and the car looks great we know it will never be as good as before it was damaged. People people aren’t cars and damage to our bodies and minds are long lasting.
- We can put people in prison and we could even put them to death for their crimes, but we are never allowed to injure or torture people.
- Jurors, you are the community and you set the standards for this community. The owner of the store says to people: “come into my store and buy something.” He doesn’t say: “come into my store and watch the floor while you walk around for anything dangerous that might make you slip or fall.” That’s because there’s nothing to buy on the floor. No, he says: “come in, don’t worry about the floor. I’ll take care of the floor, look up the shelves for something to buy.” When the store owner distracts your attention from the zone of danger on the floor, the patron should not be held liable. Otherwise the store owner should be required to put the merchandise on the floor instead of on the shelf. I say to you that if this defect was one foot higher Joe Brown would’ve seen it. People in the store are entitled to have things on their mind and to be distracted by the merchandise and trying to get them to buy something. It is the store owner who has the duty to look down and to inspect and to protect patrons from injury.
- The defendant always argues that the defect is too small or too large that caused the plaintiff to fall. They argue that the defect was too small for the defendant to have seen or noticed or been concerned. Or they argue that the defect is so big the plaintiff should have seen it. The defect is never just right. It is always too big or too small. I’ve never had a case where the defense lawyer concedes that the defect was just the right size.
- The defense would like you to believe that the 45 minutes their hired defense doctor examined the plaintiff was the most important 45 minutes of the plaintiffs life. They want to ignore the testimony of family friends neighbors and others who have been involved with the plaintiff over the past months. They want you to believe the many hours the treating doctor saw the plaintiff wasn’t important. Does that make sense to you?