Category Archives: Argument

MISCELLANOUS ARGUMENT CAPSULES

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?

CONCLUDING YOUR FINAL ARGUMENT

One of my partners is about to make final argument in a hospital malpractice case he has been trying for several weeks.We discussed the question of final argument and how it should be concluded because the opening and concluding of a final argument is, in my view, very important. While one can be spontaneous in argument the beginning and the end merit careful thought and preparation. It is a matter of first impression and a matter of what they hear last from you which sets the tone for the jury. As a result, I decided to review some arguments given by me and look at argument materials I have kept. I thought I’d share a little  about the subject with you.

First, I’d like to point out  the views of the great plaintiff’s lawyer Moe Levine. I had the privilege of participating in a small group week long seminar with Moe many years ago. I attended it after hearing him lecture several times. I was so impressed with his wisdom and advocacy skills I became a dedicated fan of Moe and appropriated much of his original ideas. Here’s Moe’s idea about the jury concept:

  1. To motivate the jury they must feel their verdict is a “meaningful verdict.” That means a verdict which they will be proud of when they go home. One they want to tell their neighbors about. Therefore, there must be a reason why the verdict is one they will be proud to have rendered.
  2. They need to be told that they are the “voice and conscience” of the community. They set community standards and speak for the community. That means what they do is very important and has meaning beyond just the participants in the case.
  3. It is true they must follow the  law, but while the judge gives the law, it us up to the jury to determine the true facts and  apply the law in a way that justice will be  done & a just verdict will result.  There is a  subtle jury nullification idea in this idea and they should be empowered to do what they believe is right under the law and evidence.
  4. It isn’t enough that it is the right verdict. To be proud of the verdict it must be the right verdict for the right reason.
  5. It’s not what was taken away that is important. It’s what the person was left with that is important. If you take $5 from a wealthy person, it is insignificant, but if you take $5 from a poor person ir ia significant.

Here is an example of how I have concluded my final summation in an injury case. It’s not perfect by any evaluation, but it is an actual example of one way to conclude an argument:

Well, I’m done ‑‑ I would like you to carefully consider doing what your conscience thinks right in this case, whether you agree with me or not. Whatever you think is right, I urge you to do it, because I believe in the jury. system and the American justice system and the fact that the system makes people accountable for what they do, and I want ‑‑ this is one of the most important cases I’ve ever tried. I want you to be proud of whatever you do ‑‑ even if you don’t do what I suggest, even if you disagree, please make sure it’s what your conscience tells you. I want you to look back when it’s ten years from now and you’re having a cup of coffee and you think, well, whatever we did, it was right. Okay? Because I think it’s the voice and conscience of the community in every respect, and I want you to ‑‑ when you’reevaluating this, please, keep this in mind. This is the hard part. He isn’t always going to be this small, cuddly little boy. He is someday going to be a grown man of 40 years old, people will shun, reject, and avoid. He will have nobody to love him.

Please, whatever it is, be just. Thank you. You’ve been great. Let me tell you one more thing. I know, I can hear you saying, for goodness sakes, will you stop. I can almost hear you saying that. But you see, I am worried about, what if I didn’t do it right, I am afraid it might be wrong Can I say this to you, without sounding like I’m trying to ingratiate myself. Look, I know and I think everybody knows what you have gone through here has been an enormous sacrifice. I know we were supposed to finish last week, and some of you had commitments, and I know the jury room is a terrible place to be when we were out here arguing and you don’t know what’s going on and the chairs in there are bad. It’s a bad little room and you want to say to the lawyers, get on with it, why don’t you ever ask this question, this is what I want. I know all that, and I appreciate your attention. I truly do appreciate everything you’ve done. I won’t be mad at you no matter what you do. I believe in the jury. I trust you and believe in you. Sally and I will be waiting to hear your verdict, and I still am scared, and I thank you.

 

ARGUING A CONSORTIUM CLAIM IN A BRAIN DAMAGE CASE

Have you thought about the reality of a consortium loss of a spouse who has been seriously injured ? The truth is that the loss isn’t just one of love. It is much more than that. In a situation involving brain injury it involves  adjusting to an entirely new person. Here are some thoughts to consider in such a case:

1.     HE   MARRIED HER FOR WHO SHE WAS WHEN THEY MARRIED  & OVER 40 YRS GREW TO LOVE WHO SHE BECAME They could finish each other sentences – know what the other thinking  and adjusted  to  what  wasn’t perfect in the other.

2     THEY WERE LOOKING FORWARD TO ENJOYING THE GOLDEN YEARS TOGETHER & HAD PLANS FOR THEIR  FUTURE  Their dreams of a future together have been shattered. Instead of golden retirement she has become dependent upon him and he has become her caregiver for the rest of their lives. Their golden  years won’t be spent in enjoying life, but in surviving. Her goals in retirement have been reduced to trying to learn to drive again  – something 16 yr olds can do better then she can.

3.    THIS WAS SUDDENLY THRUST UPON THEM NO FAULT OF THEIRS  They both are totally innocent – not fault of hers or his. They were unprepared for it. They were forced to immediately have to deal with an  enormous cross which was not of their making. His role has been  suddenly imposed upon him: the role of nurse, house cleaner, her caretaker and sole manager of their home and lives.

4.    HE WILL NEVER AGAIN SEE THE WOMAN  HE MARRIED AND GREW TO LOVE  The woman he met, fell in love with and married, the woman he grew to know and experience life with no longer exists and never  will exist again. He has to get to know a totally different person than the one he knew and loved for so many years. It’s like suddenly being married to someone he never met or knew before. There is nothing anyone can ever do to change her back to the person he knew and loved for forty years and who is children and grandchildren knew and loved.

5     THIS  JUST DOESN’T IMPACT HER, BUT HUSBAND, CHILDREN, GRANDCHILDREN, FRIENDS. Like ripples caused by a rock thrown into a calm, quiet pond, the profound changes will rush out into his life, her life, their life, their children, friends and everyone they know or deal with.

6.     WHAT HAS BEEN TAKEN AWAY IS PRICELESS:  The essence of what made  her her, her personality and her personhood were suddenly destroyed. The woman he married gone forever. Who they were as marital partnership gone. Everything that made them the married couple they were utterly destroyed

10.    TO ADD TO  THEIR SUFFERING  WHEN THEY SEEK JUSTICE  TO REMEDY THIS CATASTROPHE THEY  ARE TOLD IT’S REALLY THEIR FAULT  She is told she needs to learn to be independent. He’s told it’s his fault, he is overly protective of her. Not only that they hear the defense lawyers tell the jury they contrived the extent  of the injuries with their doctor.They refuse to be accountable.  Instead, the defense lawyers institute total warfare against them simply because they have asked  for basic justice from an American jury.