Preview
Received and E-Filed for Record
1/19/2018 4:45 PM
Barbara Gladden Adamick
District Clerk
CAUSE NO. 16-09-10703 Montgomery County, Texas
JOHN MOON, JR., IN THE DISTRICT COURT
Plaintiff,
v 284TH JUDICIAL DISTRICT COURT
JOSE SANTAMARIA AND USAA
CASUALTY INSURANCE COMPANY
Defendants. MONTGOMERY COUNTY, TEXAS
PLAINTIFF’S TRIAL BRIEF ON “SEND-A-MESSAGE” ARGUMENT
TO THE HONORABLE JUDGE:
Plaintiff submits this trial brief regarding closing arguments
that ask the jury to send a message to the Defendants with its
verdict.
A One of the purposes of tort litigation is to deter wrongdoing
and injurious conduct.
While tort law’s primary purpose is to compensate wronged
plaintiffs; that has never been its only goal. Nelson v. Krusen,
678 S.W.2d 918 (Tex. 1984). Our courts have always recognized tort
law’s unique ability to deter wrongdoing as a means of social
policy. Restatement (Second) of Torts § 901 (1965); McKisson v.
Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1987); Otis Eng’g
Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983). Indeed, “one objective
of tort litigation is to modify the defendant’s behavior—and the
behavior of others who want to engage in the same conduct—by
deterring conduct considered after the fact to be unreasonable.”
Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria
USAA Casualty Insurance Company; Plaintiff’s Trial Brief
On “Send A Message” Argument Page 1 of 7
Antonio 1991, writ. denied). Further, Dean Prosser noted “[t]he
important in the field of torts. The courts are concerned not only
B Arguments asking the jury to send a message to the defendant,
in contrast to the public at large, are not improper.
Motor Co., 944 S.W.2d 757, 774 (Tex. App.—Corpus Christi 1997),
191 S.W.3d 416,
On “Send A Message” Argument Page 2 of 7
191 S.W.3d 147, 162 (Tex. App.—Fort Worth 2005, no pet.)
In re A.J.G., 131 S.W.3d 687, 692-93 (Tex. App.—Corpus
859 S.W.2d 382, 389 (Tex. App.—Houston [1
Gannett Outdoor Co of
On “Send A Message” Argument Page 3 of 7
Cc Texas Courts recognize the jury’s role as the voice of the
(Tex. App.—Corpus Christi 2004, pet. denied) (“pleas to the jury
is on, and likewise counsel must be indulged
the privilege of flight of oratory. The final
On “Send A Message” Argument Page 4 of 7
verdict, the argument is not intrinsically
improper.
Rainbow Express, Inc. v Unkenholz, 780 S.W.2d 427, 434 (Tex.
App.—Texarkana 1989, writ denied) (citations omitted); see also
Louisiana & Arkansas Ry v. Capps. 766 S.W.2d (Tex. App.—Texarkana,
1989, writ denied) (“As long as the argument has some evidentiary
basis or may be reasonably inferred from the evidence and is free
from inflammatory remarks, it is proper.”).
D References to the Golden Rule are permissible.
Specifically, World Wide Tire Co. v. Brown 644 S.W.2d 144, 145
(Tex. App. - Houston [14 Dist.] 1982, writ. ref’d n.r.e.) says
“[i]lt is not improper for an attorney, in his closing argument, to
argue the ‘Golden Rule,’ i.e. do unto others as you would have them
do unto you, because that alone merely asks the jury to follow the
Golden Rule and would require the jury to look with equal
solicitude to the rights of both plaintiff and defendant.” World
Wide Tire Co. v. Brown, 644 S.W.2d 144, 145 (Tex. App.—Houston [14*
Dist.] 1982, writ. ref’d n.r.e.) (citing Fambrough v. Wagley, 140
Tex. 577, 169 S.W.2d 478 (1943) ) (emphasis added).
Conclusion & Prayer
For the foregoing reasons, Plaintiffs respectfully request
that the Court allow the above arguments. A fundamental purpose of
tort law and, specifically, products liability law, is to deter
injurious conduct, deter poor manufacturing and dangerous products,
Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria
USAA Casualty Insurance Company; Plaintiff’s Trial Brief
On “Send A Message” Argument Page 5 of 7
and ensure consumer safety. Arguments asking the jury to send a
message to the Defendants is supported by case law, and merely asks
the jury to fulfill its role as the voice of the community.
Further, references to the Golden Rule are permissible in Texas
courts and have been for decades. Plaintiffs request the Court
allow the above arguments as they are clearly proper.
Respectfully submitted,
LAW OFFICE OF STEPHEN W. SHOULTZ
2608 Hibernia
Suite 201
Dallas, Texas 75204
Office: (214) 742-3293
Fax: (214) 742-7701
Email: Sandra@shoultzfirm.com
By s/Stephen W. Shoultz
Stephen W. Shoultz
State Bar No. 18304250
ATTORNEY FOR PLAINTIFF
Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria
USAA Casualty Insurance Company; Plaintiff's Trial Brief
On “Send A Message” Argument Page 6 of 7
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Civil Procedure, I
hereby certify that on this the 19th day of January, 2018, a true
and correct copy the foregoing instrument was served on the
following counsel:
Jay M. Taylor
Arnold & Taylor
420 Lockhaven Drive
Suite 100
Houston, Texas 77073
David H. Bradley
Walters, Balido & Crain, LLP
2500 Tanglewilde
Suite 250
Houston, Texas 77063
Patrick R. Scott
Scott Law Firm
118 J. San Jacinto Street
Conroe, Texas 77301
s/Stephen W. Shoultz
Stephen W. Shoultz
Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria
USAA Casualty Insurance Company; Plaintiff’s Trial Brief
On “Send A Message” Argument Page 7 of 7
Preview
Received and E-Filed for Record 1/19/2018 4:45 PM Barbara Gladden Adamick District Clerk CAUSE NO. 16-09-10703 Montgomery County, Texas JOHN MOON, JR., IN THE DISTRICT COURT Plaintiff, v 284TH JUDICIAL DISTRICT COURT JOSE SANTAMARIA AND USAA CASUALTY INSURANCE COMPANY Defendants. MONTGOMERY COUNTY, TEXAS PLAINTIFF’S TRIAL BRIEF ON “SEND-A-MESSAGE” ARGUMENT TO THE HONORABLE JUDGE: Plaintiff submits this trial brief regarding closing arguments that ask the jury to send a message to the Defendants with its verdict. A One of the purposes of tort litigation is to deter wrongdoing and injurious conduct. While tort law’s primary purpose is to compensate wronged plaintiffs; that has never been its only goal. Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984). Our courts have always recognized tort law’s unique ability to deter wrongdoing as a means of social policy. Restatement (Second) of Torts § 901 (1965); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1987); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983). Indeed, “one objective of tort litigation is to modify the defendant’s behavior—and the behavior of others who want to engage in the same conduct—by deterring conduct considered after the fact to be unreasonable.” Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria USAA Casualty Insurance Company; Plaintiff’s Trial Brief On “Send A Message” Argument Page 1 of 7 Antonio 1991, writ. denied). Further, Dean Prosser noted “[t]he important in the field of torts. The courts are concerned not only B Arguments asking the jury to send a message to the defendant, in contrast to the public at large, are not improper. Motor Co., 944 S.W.2d 757, 774 (Tex. App.—Corpus Christi 1997), 191 S.W.3d 416, On “Send A Message” Argument Page 2 of 7 191 S.W.3d 147, 162 (Tex. App.—Fort Worth 2005, no pet.) In re A.J.G., 131 S.W.3d 687, 692-93 (Tex. App.—Corpus 859 S.W.2d 382, 389 (Tex. App.—Houston [1 Gannett Outdoor Co of On “Send A Message” Argument Page 3 of 7 Cc Texas Courts recognize the jury’s role as the voice of the (Tex. App.—Corpus Christi 2004, pet. denied) (“pleas to the jury is on, and likewise counsel must be indulged the privilege of flight of oratory. The final On “Send A Message” Argument Page 4 of 7 verdict, the argument is not intrinsically improper. Rainbow Express, Inc. v Unkenholz, 780 S.W.2d 427, 434 (Tex. App.—Texarkana 1989, writ denied) (citations omitted); see also Louisiana & Arkansas Ry v. Capps. 766 S.W.2d (Tex. App.—Texarkana, 1989, writ denied) (“As long as the argument has some evidentiary basis or may be reasonably inferred from the evidence and is free from inflammatory remarks, it is proper.”). D References to the Golden Rule are permissible. Specifically, World Wide Tire Co. v. Brown 644 S.W.2d 144, 145 (Tex. App. - Houston [14 Dist.] 1982, writ. ref’d n.r.e.) says “[i]lt is not improper for an attorney, in his closing argument, to argue the ‘Golden Rule,’ i.e. do unto others as you would have them do unto you, because that alone merely asks the jury to follow the Golden Rule and would require the jury to look with equal solicitude to the rights of both plaintiff and defendant.” World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145 (Tex. App.—Houston [14* Dist.] 1982, writ. ref’d n.r.e.) (citing Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943) ) (emphasis added). Conclusion & Prayer For the foregoing reasons, Plaintiffs respectfully request that the Court allow the above arguments. A fundamental purpose of tort law and, specifically, products liability law, is to deter injurious conduct, deter poor manufacturing and dangerous products, Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria USAA Casualty Insurance Company; Plaintiff’s Trial Brief On “Send A Message” Argument Page 5 of 7 and ensure consumer safety. Arguments asking the jury to send a message to the Defendants is supported by case law, and merely asks the jury to fulfill its role as the voice of the community. Further, references to the Golden Rule are permissible in Texas courts and have been for decades. Plaintiffs request the Court allow the above arguments as they are clearly proper. Respectfully submitted, LAW OFFICE OF STEPHEN W. SHOULTZ 2608 Hibernia Suite 201 Dallas, Texas 75204 Office: (214) 742-3293 Fax: (214) 742-7701 Email: Sandra@shoultzfirm.com By s/Stephen W. Shoultz Stephen W. Shoultz State Bar No. 18304250 ATTORNEY FOR PLAINTIFF Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria USAA Casualty Insurance Company; Plaintiff's Trial Brief On “Send A Message” Argument Page 6 of 7 CERTIFICATE OF SERVICE In accordance with the Texas Rules of Civil Procedure, I hereby certify that on this the 19th day of January, 2018, a true and correct copy the foregoing instrument was served on the following counsel: Jay M. Taylor Arnold & Taylor 420 Lockhaven Drive Suite 100 Houston, Texas 77073 David H. Bradley Walters, Balido & Crain, LLP 2500 Tanglewilde Suite 250 Houston, Texas 77063 Patrick R. Scott Scott Law Firm 118 J. San Jacinto Street Conroe, Texas 77301 s/Stephen W. Shoultz Stephen W. Shoultz Cause No. 19-09-10703; John Moon, Jr. V Jose Santamaria USAA Casualty Insurance Company; Plaintiff’s Trial Brief On “Send A Message” Argument Page 7 of 7