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.

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