Chapter 22 - Hone Oratory Skills by Simplification

Develop skills which help you unequivocally get your point across to judges. Although it is imperative that you must know the layers of the onion and be able to dissect each element of a claim, these are what you use as your basis for making your points. These are not the points you make.

The only way to describe this task is by example. I once had a personal injury defense case. Prairie View A & M University was sued for premises defect, and my client, a contractor for the university, was sued for negligence. The plaintiff had serious 3rd-degree burns when he was working on a steam pipe. The valve was supposed to be closed so that he could open the pipe and work on it. However, it turned out that there was a by-pass around the valve in question, and nobody closed the by-pass valve. He cracked open the pipe, and his skin melted off.

Sovereign immunity was the university's defense. Of course, it does not apply when there is a defective condition on premises owned by the government and the government has knowledge of the defect. I was piggy-backing on that concept as well for my client, though I also had some other defenses.

During trial, the plaintiff was convinced to non-suit me and go only after the university. But I could not get the university to drop its cross-claim against me for contribution. So, I was stuck for the long haul. At closing, plaintiff argued that my client was not to blame. It was the university's fault. "Put 100% on the university."

The jury came back with a plaintiff's verdict. They tagged my client for 25%. Both the state and my client appealed.

During argument on appeal, the state went first. They discussed the law on premises defect and knowledge of the defect, etc. You know, things like, "A person has knowledge of a condition when he is aware of circumstances which indicate that the condition exists." Bla, bla, bla. It was clear enough - provided you were versed from a lot of research and briefing. But appellate judges do not research as much as the litigants. So, it is now my turn to argue….

I am up at the podium, making my spiel about something on official immunity or whatever (I forget), and then, one of the justices stops me, "Ah, counsel. But wasn't there proof in the record that the university knew of the defective condition?" (Kind of makes you think the state never expressed this idea clearly enough). My reply was succinct:

I am glad you asked that question, Your Honor. I am not so sure this issue was adequately addressed earlier. These pipes are carrying hot steam. Steam is extremely dangerous. These guys working out there worked with each other every day. They liked each other. Now, the dangerous condition is not about valves and hardware. It's about steam. The dangerous condition has to be that there is steam in the pipe when there should be none. In fact, that was the way the trial court instructed the jury. If anyone actually had knowledge that there was steam in those pipes and then, they tell the plaintiff to go ahead and crack the pipe open, that's pretty much the same as attempted murder. The facts of this case just do not support that.

The court of appeals reversed and rendered a take-nothing judgment. In the opinion, the justices said how bad they felt for the plaintiff, but the law is the law.

© 2015, Jeff M