Category Archives: Argument


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.


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:

  1. Reminder of voir dire discussion points: try the case on the basis of no sympathy for either party. Render a verdict for full justice.
  2. 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.
  3. Proximate cause explained with examples.
  4. The most important issue: what some of money fairly reasonably and justly is required for a full and proper verdict?
  5. 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.
  6. 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.
  7. 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.
  8. 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.


  • 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.


  • 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.


  • 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.”


  • 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.


  • 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.


  • 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


  • 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.