Themes: Part 10

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(3) Biblical Quotes & Parables – The Bible is an excellent source of quotations. However, a caveat is to be very careful in using biblical quotes or parables which are subject to multiple interpretations. Remember how many different denominations there are that interpret the same basic scriptures in very different ways.

Particularly in the interpretation of the Bible, it could be disastrous for counsel to offer an example to make a point with which a juror disagreed on the interpretation or which opposing counsel could interpret to their benefit. Examples of Biblical quotations which may be helpful include:

If he rise again, and walk abroad upon his staff, then shall he that smote him be clear; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. Exodus 21:18,19

Rachel weeping for her children refused to be comforted: because they were not. Jeremiah 31:15

(4) Song Lyrics – Quotes from song lyrics can be particularly compelling when properly incorporated into an argument. For example, in the case of a 22-year-old college coed who was a paraplegic and who testified as to her mental anguish when she helped the other young ladies prepare for dates for the big game on Saturday night, counsel effectively used the lyrics from “They’re Writing Songs of Love, But Not For Me.”

(5) Literature – Familiar quotes from literature are very useful tools. Once again, the more familiar the quote, the more useful in establishing commonality with the jury. Consider, for example, Shakespeare’s quote concerning the value of a person’s reputation, which may be useful in a defamation case.

Good name in man and woman, dear my Lord, is the immediate jewel of their souls. Who steals my purse steals trash; but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed. OTHELLO, ACT III, SCENE III

The purest treasure mortal times afford is spotless reputation. RICHARD II, ACT I, SCENE I

Shakespeare may also be useful if the defendant or defense counsel has shown a cavalier attitude towards the plaintiff’s pain and suffering: He jests at scars that never felt a wound. ROMEO & JULIET, ACT II, SCENE II

(6) Witnesses/Parties – Of course, often the most persuasive quotes in the case will come from the witnesses and the parties, either during the trial or in previous correspondence, publications, depositions or other writings. Once these have been introduced into evidence, a particularly relevant or poignant quote should be enlarged, mounted on fiber board and shown to the jury during summation.

In order to obtain these quotes, search carefully the literature of the opposing party and their experts; trial and deposition transcripts from other cases and, of course, quotes from the case at bar. Also search through all records, reports or other writings by your opposition, their experts and witnesses, with a particular eye to pulling out quotes which may be enlarged and used in the persuasive process during summation.

(7) Medical Quotations – The following quotations are from an accumulation in a sample notebook by Thomas J. Murray. Once again, the full quote may not be necessary in order to support your position, but they are offered as useful sources from which you may choose the relevant portions.

Quote 1
In severe sprain, the ligaments are torn, the synovial membranes are contused, or bruised. Cartilage may be loosened from bone. There may be hemorrhage into and about the joint. The muscles are stretched or torn. Tendons are stretched, torn or displaced. Blood vessels are contused. Nerves are damaged. The skin is contused.” [p. 368, Sec. 25, 27; Gray’s Attorneys Textbook of Medicine, Vol. 1]

Quote 2
In addition to torn ligaments, frequently small blood vessels also are injured. Blood escaping from these vessels may form a hematoma; this is composed more of tissue fluid than actual blood.” [p. 858; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 3
From the clinical standpoint, there are multiple organic pathological factors involved in radiculitis that follows a whiplash injury. It is reasonable to assume that there is trauma of the spinal ligaments because of the characteristic symptoms of a sprain of the neck, and, in some severe ligamentous injuries, an actual subluxation can be demonstrated by roentgenographic examination. It is likely that there is some hemorrhage and edema in the region of the damaged ligaments that may be a source of nerve irritation. Later on, fibrosis and cicatricial changes may be a chronic source of irritation of the nerve roots. At the instant of the whiplash, direct trauma of the nerve roots from stretching, compression, or even trauma of the spinothalamic pathways in the lateral columns of the spinal cord may conceivably occur.

“In the acute case, swelling and vascular congestion of the nerve root and narrowing of the foramen due to protrusion of the intervertebral disc or swelling of adjacent ligaments may be important factors producing symptoms. In chronic cases, fibrosis, which is the late counterpart of hemorrhage and edema, may involve the nerve root directly, produce adhesions between the spinal ligaments and the nerve root, or cause a relative narrowing of the vertebral foramens. An additional factor may be the abnormal mobility of the vertebral joints because of damage of the ligaments.” [p. 1703; Journal of the American Medical Assn., Vol. 152, No. 18, Aug. 29, 1953, Common Whiplash Injuries of the Neck, by Gay and Abbott]

Quote 4
Such simple activities as stooping, shaving, brushing the teeth, hanging curtains, painting or papering ceilings, making a bed, driving a car, working under a car, etc., may aggravate the symptoms because these activities usually produce hyperextension of the neck. [p. 77; The Cervical Syndrome, by Jackson]

Quote 5
At any rate, the result of neck-lashing injury is sprain or stretching or tearing, or avulsion of the ligamentous and capsular structures, with or without immediate compression or irritation of the cervical nerve roots. Sudden compression of nerve roots give immediate symptoms. If the symptoms are delayed a few hours, irritation of the nerve roots probably occurs because of hemorrhage or swelling in the surrounding structures. The symptoms may be so mild at first that they are ignored, but as time goes on further stretching and relaxation of the ligamentous and capsular structures may occur and permit more mechanical derangements. [p. 73; The Cervical Syndrome, by Jackson]

Quote 6
Degenerative changes initiated in a disc by a severe sprain may occur long after the injury and give rise to delayed symptoms. [p. 74; The Cervical Syndrome, by Jackson]

Quote 7
There is considerable evidence for the belief that in many cases the lesion may be a tear of the posterior longitudinal ligament (which keeps the intervertebral disc from protruding), a tear of the annulus fibrosus (the outer part of the intervertebral disc), or traumatic changes within the disc substance. [p. 399; Handbook of Orthopedic Surgery, 4th Edition, by Shands]

Quote 8
Usually, the roentgenogram are found to be negative immediately following and or some time after the rupture due to the fact that the degenerative changes take place slowly. Usually, by the end of a year, narrowing of the affected interspace will begin to take place, and after several years, condensation and proliferative changes of bone characteristic of traumatic arthritis will develop. [p. 109; Lewis’ Practice of Surgery, Vol. II]

Quote 9
Many of these cases of low back strain present a variable degree of the hypertrophic type. When confronted with a case of this type, a surgeon who has had much experience usually gives a guarded prognosis, especially in regard to time and completeness of relief of symptoms, because it is quite well known that these cases tend to hang on and become chronic even when properly treated for the acute strain, and that once they become chronic, they are frequently more difficult to relieve than are similar cases in which there is no evidence of arthritis. [p. 393; Fractures, Dislocations and Sprains, 5th Edition, by Key and Conwell]

Quote 10
More than one-third of all spines roentgenrayed for any purpose have shown congenital abnormalities. Most of these do not cause symptoms, but congenital defects are probably an important factor in producing weakness of the architecture of the spine, leading to points of lowered resistance to strain. In these patients, the spine is probably more vulnerable to injury than in normal persons.” [p. 1032; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 11
Roentgenographic evidence of degenerative changes in the spine is found almost universally in patients past the age of fifty years. Such changes vary considerably in severity, however, and significant symptoms are produced in only a small percentage of cases.” [p. 583] “Only about five percent of individuals past fifty have clinical symptoms. [p. 531, Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 12
Since the roentgenographic findings described above frequently are symptomatic and may appear as a physiological manifestation of aging, one must not accept these findings without careful appraisal of the symptoms and signs. In the absence of actual mechanical impingement or compression of nerve fibers by narrowed intervertebral discs, one must proceed cautiously before attributing symptoms to degenerative joint disease. Even when these changes are present, each case must be evaluated by the composite picture of all factors. [p. 540; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 13
The period between the injury and the production of traumatic joint disease may vary from days to several months. Pain and limitation of motion may persist for years following a single strain or contusion even without obvious anatomic change. [p. 855; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 14
It must be kept in mind that trauma may precipitate other forms of arthritis (rheumatoid, tuberculous, syphilitic, pyogenic, gouty, etc.), the traumatized joint often being only the first joint involved. Also, any form of joint disease (but especially degenerative joint disease) may be aggravated following trauma. (Degenerative joint disease, hypertrophic arthritis and osteoarthritis are all one and the same disease. They are merely different terms used to describe the same condition.) [p. 853; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 15
Injury produces a twofold effect on joints: (1) mechanical damage such as a capsular tear, detachment or laceration of cartilage, articular fractures, compression, splitting or detachment of articular cartilage, etc., and (2) joint reaction of such trauma.” [p. 855, Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 16
The primary pathologic reaction is a synovitis. The synovia, however, rarely is affected alone. When articular structures other than the synovial membrane are injured, pathological changes resembling those of degenerative joint disease result almost invariably. Such changes are hastened by overweight (in weight-bearing joints), overuse or the continued presence of loose bodies. [p. 855; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 17
Roentgenogram are often of little help toward making a positive diagnosis. They are of great assistance, however, in ruling out conditions such as neo-plasms or tuberculosis. (Also fractures, and troublesome abnormalities and arthritic changes.) [p. 403; Handbook of Orthopedic Surgery, 4th Edition, by Shands]

Quote 18
From a pathological standpoint it must be realized that this disease is chronic and cannot be cured. Since worn or damaged cartilage regenerates poorly, at best, and since osteophytes cannot be reabsorbed, such changes, once manifest, are irreversible and permanent. Nevertheless, much can be done to relive symptoms and to prevent, or at least retard, progression of the pathological conditions. [p. 550; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 19
That this disease (degenerative or hypertrophic arthritis) does exist in the spine is undisputed, but it is necessary to review carefully the history, physical examination, laboratory tests and roentgenogram (x-rays) before such a diagnosis is made. Often marginal lipping is the result, rather than the cause, of disease in the spine. Thus, lipping often has been demonstrated following degeneration of the intervertebral discs. [p. 537; Arthritis and Allied Conditions, 4th Edition, by Comroe]

Quote 20
For many years I have been increasingly annoyed by the tendency of my conferees to stigmatize as ‘psychoneurotic’ any symptom complex for which an organic cause could not be easily demonstrated. I cannot accept as true that authors’ (Gay & Abbott, J.A.M.A. 152:18, Aug. 29, 1953) statement that “a persistent psychoneurotic reaction” is responsible for prolonged disability in victims of whiplash injuries. The authors’ own statements make this improbable. They mention the probability of various degrees of rupture of intervertebral ligaments and admit that herniated cervical intervertebral disc was clinically diagnosed in 26% of their series.

“I have personally observed innumerable automobile collisions ranging from trivial to the severest. For some years I was one of the autopsy surgeons (full time) to the coroner, Los Angeles County, California. I have performed autopsies of quite a number of persons who were killed by the worst of whiplash injuries – ‘broken neck’. I have performed autopsies on at least a dozen persons in whom the skull was completely dislocated from the spine by such injuries. In hospitals I have seen quite a number of very serious but nonfatal fractures of the cervical spine by whiplash injury. Drs. Gray and Abbott describe the less serious, nonfatal whiplash injuries. Even in the less serious whiplash injuries, who can say how much intervertebral ligamentous tearing exists? Who can say how much hemorrhage occurs at the site of the injury and how much subsequent fibrosis and adhesions develop around nerve roots or into or between cervical muscles? Certainly such things may be expected to result in some degree of prolonged or permanent impairment. Even worse, who can say how much or how little trauma of the cervical cord in incurred?

“Certainly the x-ray cannot give the answers to these questions. By the same token early treatment and physiotherapy may be expected to minimize sequelae, and delayed treatment can be difficult or futile. Prolonged immobilization – necessary or unnecessary – could be expected to similarly result in prolonged or permanent difficulty not detectable by x-ray.

“The neck being a highly mobile structure, it seems reasonable to expect that any post-traumatic fibrosis around nerve roots or into or between muscles, even though rather slight, could be expected to give more prolonged symptoms than elsewhere along the spine. It seems to me that one should be very reluctant to categorically state that ‘More than half the patients in this series … were seriously handicapped in this way, i.e., by ‘persistent psychoneurotic reactions’. Many symptoms are due to real factors that cannot be objectively demonstrated. Not a few persons die of causes that cannot be demonstrated by the most thorough autopsy. Such persons do not die of psychoneuroses.” (underscoring supplied [p. 974; Journal of the American Medical Assn., Vol. 153, No. 10, Nov. 7, 1953 – Letter to the editor from John H. Schaeffer, M.D., Los Angeles]

h. Adapting Standard Arguments – There are numerous standard arguments which have been developed over the decades which can be readily assimilated by counsel to your individual case. The following are simply a few of the more useful:

(1) Pain and Suffering:

  1. Measuring Physical Pain and Suffering. How do you measure the reasonable value to be placed upon the physical pain and suffering of the plaintiff. One way is to determine what we will pay to avoid physical pain. In our society, we think nothing of paying $30.00 for a novocaine shot in order to avoid thirty minutes of physical pain in the dentist chair. If we will pay one dollar per minute to avoid physical pain, is $5.00 per hour enough to compensate for the constant enduring of physical pain?
  2. Constitutional right to be free from pain. Even the state which can, under our constitution, inflict death, cannot inflict physical pain.
  3. Pain is life’s window into hell. People in anguish and pain pray for death. No one prays for pain.
  4. Job ad – catastrophic injury:
    Ladies and gentlemen assume that tomorrow we run an ad in the Houston Post that reads as follows: ‘Job available, no experience necessary. No education necessary. Pay: $100.00 per day. Only two conditions: first, you must suffer pain every waking moment of your life, and secondly, you can never resign.’ Ladies and gentlemen, how many applicants do you think would apply for that job?
  5. Minimum wage:
    Ladies and gentlemen, we pay $4.20 per hour for the most menial tasks in our society. Shouldn’t this be at least the very minimum compensation for the constant suffering of physical pain?

(2) Value of Human Life: In maintaining a summation notebook, keep current examples of the value placed on human life within our society. For example:

When Jessica McClure was trapped in the well in West Texas, the entire country was breathless for 56 hours while Herculean efforts were made to save the child’s life. The country breathed a collective sigh of relief when the young child was saved. At no point did anyone stop to inquire as to the cost of these efforts and whether the life of the child was worth the cost.

(3) Full Justice: Ladies and gentlemen if this lawsuit concerned the death of that magnificent racehorse Seattle Slew in an automobile accident instead of the death of this husband and father, the owners of Seattle Slew would be in this court as plaintiffs seeking 10 million dollars and that would be what full justice would demand. Why, because 10 million dollars was paid to purchase the horse. If the jury decided, after hearing the evidence, that despite the fact that 10 million dollars was actually paid for the horse, that 10 million dollars was just too much money and awarded only 5 million dollars, that would not be justice. That 5 million dollars would represent half justice and anything less than full justice is injustice. We have proven that full justice demands 5 million dollars in compensation to the widow and children of this fine man and anything less than that amount will not represent full justice. Therefore, when you deliberate on damages in this case, please remember that you agreed on voir dire examination to render full justice in this case; that full justice demands at least 5 million dollars to compensate this plaintiff, and that anything less than full justice is injustice. For the use of this argument in a summation, see page 78, infra.

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