Category Archives: Argument


Today I sorted through notebooks from my practice to organize the  material and as I did so I noticed a few things I thought might be worth sharing with you. By the way, what struck me was the fact that much of what I’ve used in trial over the years was originally someone else’s thought or idea. A whole lot of “new” tactics and ideas  are really old  ones with new dressing on them. But, here you are and in no particular order.

  • The brain isthe greatest, finest, most wonderful organ in the human body. A man thinks with it. He loves with it. He hates with it. He fights people with it. It’s the difference between an animal on the street and a human being. This wonderful brain has been damaged.
  • Remember, there is a very fundamental right involved here – a fundamental right guaranteed all of us under the Constitution of the United States – freedom of choice. This family has a right to decide for themselves how they want Sandy taken care of. No one has a right to dictate to them that they must put her in a nursing home or be told how Sandy should be taken care of. A fair verdict in this case will give this family a choice in that regard. This is a  fundamental right of freedom of choice and it’s only available  through your verdict. It’s just as simple as that.
  • What’s the importance of the loss to Joey of about 15% of his mental ability? What’s the difference to Joey for the rest of his life? The difference between possible greatness and mediocrity. The difference between Lincoln and me. The difference between poets and philosophers. This is the difference. The loss will not just endure for a time. It will grow and grow as he gets older and finds his competitive ability impaired in going through life. The boy you have seen does not even resemble the boy you would have seen had you seen him just before the accident happened. That Boyd no longer exists. The man you will see in his future does not even resemble the man he would have been. His parents who had such joy and pride in such hopes for him cannot be compensated for the loss of those hopes. His dreams have been destroyed.
  • The boy is in pain. those of us who know the Ecclesiastes chapter in the Bible know there is a time for pain, there is a time for tears and a time for laughter. Childhood is the time for laughter and not pain. We can’t give him back his carefree childhood. That’s gone. We can’t give him back a release from pain. We can only give him money. So it becomes my function to talk to you about money. That’s all that can be talked about.
  • I pray that whatever verdict you bring in will be sanctioned by your own sense of conscience, ratified by your reason and express the conscience of this community.
  • He is a prisoner in his wheelchair. His hands are virtually useless. He has no sensation below the chest. He needs a suppository to stimulate bowel movements. He can’t feel it if he breaks a leg. A common cold could be life-threatening. He views the whole world sitting down. How he must yearn to just stand up, walk, run, go to the bathroom. How he must suffer with his total dependence on other people. Maybe he’ll feel the joy of falling in love, but doctors say he will never feel the joy of siring a child. He can never walk down the aisle. He’ll be lucky to find someone to go down the aisle with him.
  • Wheelchairs are the shoes of a quadriplegic. He’s imprisoned in his wheelchair with no possibility of ever being released. Unlike prisoners in cells who were let out each day for exercise he is permanently a prisoner in his wheelchair.  His situation is worse than death.
  •  “preponderance of the evidence” is like a baseball game with a score of 9 to 8. The team with nine points wins even though the other team scored eight points.
  • Who’s in a better position to have known? Who’s should’ve spent the few dollars to make it safe?  A national railroad with many  employees and experts at their disposal or this young man?  the parties are not on equal footing.  In addition, there’s a great deal of difference in the ability to know and the power to do something about it.  The young man was there for a few minutes or a few hours, but the railroad has had weeks and months and years of knowing what’s going on on their own property. They have no right to shift the responsibility to somebody else with all the employees and  experts at their disposal.
  • If you go to Disneyland watch the people. They don’t go around and inspect all of the rides before they get on them. They expect that the facility is safe because the people who run it have the most knowledge and information as well as superior knowledge about it. If the owner with the superior knowledge wasn’t aware of the danger why is it reasonable to blame the person who relied upon the owner’s superior knowledge.
  • We all can go to the polls and vote with thousands of other people.  But here you have a chance to directly and personally do an enormous amount of good by your vote for another person. You can individually dispense justice in this case directly. You can individually vote to establish safety standards to prevent other events like this. In this case your verdict can be one that will allow you to tell your friends and your children and your neighbors that you participated in a vote that had historic significance. yes, you’ve made a sacrifice by being here for this trial, but you have this consolation: You’re not here on some trivial matter nor have you wasted your time on something insignificant. What you do here will have importance  beyond these parties and this courtroom and far into the future. You have the power to make changes and to do justice in a very important way.


Here some random notes  from my argument notebook which you might find helpful.

In the case of the person with pre-existing injuries consider this argument. Suppose a farmer is on his way to market with a truckload of eggs valued at $.41 a dozen. The truck is hit by a careless driver and the eggs are broken. The law won’t allow the defendant driver to argue: “but if they were golf balls, none of them would have been damaged.”

Suppose the truck had a horse it was hauling when it was hit by the careless driver. How much should the defendant have to pay? It depends upon the kind of horse that was injured. Plow horses might sell Ford $250. Riding horses for $2000. Racehorses for $50,000. Whatever the value of what was taken away turns out to be, is the amount the defendant should pay. Well, what if instead of a horse there was a Rembrandt painting worth $1 million. The defendant is obligated to pay for the damage done. He should not be allowed to argue that it is unfair to have to pay full price. “How about paying half price” is not an acceptable argument in the law.

Pre-existing injuries aggravated by trauma can be argued like the farmers truck. It’s like a farmer driving his truck to market when another car runs a stop sign hits it and turns the truck over. The fenders of the truck are bent and the windows are broken. The jury is asked to fix the damages he’s entitled to.  the jury would want to restore the farmer to the truck he had before it was damaged. He’s not entitled to a new truck but is also not entitled to end up with the damage truck. A fair result is the cost of putting the truck back in the same condition it was before the collision.

Tom Lambert was the editor of the American trial lawyers Journal and its executive representative for many years. He was a great orator. Here are some of the quotes from talks Tom gave:

  • a fence at the top of the hill is better than an ambulance in the valley below
  • immunity breeds irresponsibility.
  • Technique without ideals is a menace; ideals without technique is a mess.
  • The best place to eliminate product related injuries is on the drawing boards.”

Moe Levine based his “whole man” argument on a passage from the New Testament 1 Corinthians 12 where it reads:

“So then, the I 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; if one part is praise, all the other parts share its happiness.”

Here are some quotations from various sources which I’ve saved and which you might find useful in some context:

  • it was about as helpful as throwing a drowning man both ends of the rope
  • every person’s right to swing their fist stops at another person’s nose
  • snatching defeat from the jaws of victory
  • that is not a flag I would like to march under

Abraham Lincoln defending a client once told the jury:

“My client is like the man who was going along  the road with a pitchfork on his shoulder when he was attacked by a fierce dog that ran out from a farmers yard. He uses pitchfork to defend himself and in the process killed the dog. The outrage farmer demanded: “what made you kill my dog?” To which the man replied “what made your dog try to bite me?” The farmer retorted “why did you not try to go after him with the other end of the pitchfork?” To which the man responded “why did not the dog come after me with his other end?”

An analogy for circumstantial evidence is the story of Robinson Crusoe. Robinson found a footprint in the sand and at the side of it faded because he knew there was someone else on the island where he had thought he had been totally alone. Note that he did not see a person. He did not see a foot. All he saw with the marks made by a human foot in the sand. That was circumstantial evidence. Our case has footprints in the sand that are just as strong evidence as the story of Robinson Crusoe.


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.


  • 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.