More and more, we lawyers are awakening to a perception of the truth that what divides us and distracts us from the solution to a legal problem is not so much uncertainty about the law as uncertainty about the facts -- The facts will generate the law. Let the facts be known as they are, and the law will spring from the seed and turn its branches towards the light. (Judge Benjamin Cardozo)

One of my first cases was John Short vs. Hogan Construction Co. John W. Short, 32 years of age, with a wife and children, was injured in a two-car collision. As a result, he suffered for 63 days and died. One passenger in his vehicle was killed; another severely injured. The collision occurred when a pickup truck crossed the center line and collided with the John Short vehicle. Three lawyers declined to take the case on behalf of the surviving widow and children of John Short.

Many lay people are under the impression that, in a trial of a lawsuit, the truth will out--that justice will prevail. This perception, no doubt, is generated by Hollywood and television productions where a trial lawyer, by a brilliant extemporaneous cross-examination, destroys the opposing witness; falsehood is exposed; and truth and justice are triumphant. Unfortunately, this does not happen unless the truth is laboriously and meticulously presented to the jury, the triers of fact.

The pursuit of the facts begins in the lawyer's office in the first interview with the client. In obtaining the client's confidence, the lawyer in a small town has an advantage over the city lawyer in establishing this essential rapport with his client. The lawyer may know the client or his relatives or neighbors. He knows the community and its traditions, its customs. He does not leave his client cooling his heels in the reception room, as if he were in a doctor's office. A lawyer does not direct his secretary to escort the client to his office; instead he greets the client and ushers him to his office. He directs his secretary to hold his calls, so that he will not be disturbed. This is a reassuring message to the client that he is important and that his case is significant and the lawyer is receptive and wants to help him.

This confidence, having been obtained, the lawyer must never lose it. It is a good practice, at the conclusion of the first conference with a client, to have the client go home and write out a narrative of everything that happened from the day of the event to the present date--every detail--whether or not he thinks it is significant. This has two purposes. It gives the client something to do--a participation. In addition, it is amazing how frequently, when the client is ask to go home and write down everything that happened, what he remembers. Facts he might consider insignificant may, in the eyes of an expert, be extremely important in formulating his opinion.

The first introduction to a case may come through a personal representative of the client--a relative or one having a power of attorney or an administrator. In this event, the representative should bring to the initial conference all documents, records, reports and correspondence that have any possible bearing on the case. However, the experienced lawyer has learned never to make a final evaluation of a case, where substantial injuries are involved, based upon the documents and reports until they have been established to be credible. This is particularly true of police or other investigative reports. Before passing judgment--"get the facts."

In the case of John Short, his father-in-law came to see me in Little Rock. He had been to see other lawyers in his hometown. He had with him the police report, which indicated:

1. John Short, prior to the collision, was driving 80 miles per hour in a 65 mph zone;

2. A strong odor of alcohol was present in the John Short vehicle;

3. A bottle of Medley Brothers Whiskey was found near the right door of the John Short car.

In addition, the driver of the pickup truck, which had crossed the center line and collided with the John Short vehicle, had no liability insurance. Understandably, the lawyers who had been consulted had refused the case.
John Short's father-in-law, a long-time friend and supporter of mine, requested that I investigate the case as a personal favor to him. I personally investigated the case as requested.

The police officer who made the investigation still had the bottle of Medley Brothers Whiskey. The seal had not been broken. There was a crack in the shoulder of the glass bottle from which whiskey would leak when the bottle was tilted.

The nurse on duty in the emergency room of the local hospital, who had assisted the emergency room physician in caring for John Short and who accompanied Mr. Short in the ambulance to a Little Rock hospital, stated that there was no odor of alcohol on John Short and that the emergency room physician remarked that "this is one automobile accident where no alcohol was involved."

The witness who had told the police officer that John Short was traveling 80 miles an hour prior to the collision could not be located at his given address. However, since he was an over-the-road truck driver, it was a reasonable inference that he was a member of the Teamsters Union. I contacted the business manager of the Teamsters Union in our area and determined that this witness was, indeed, a member. He was found in Houston, Texas. In a personal interview, the driver stated that John Short passed him going west traveling approximately 80 miles an hour, but there was other traffic moving in the same direction, and when Short passed these vehicles, he reduced his speed and "flowed with the traffic."

Louis Melton, driver of the pickup truck, stated that the highway where the collision occurred, which ran east and west, was being resurfaced and that there was a drop off on the south shoulder of 8 to 12 inches, and the right front wheel of his truck dropped off the pavement onto the shoulder. In an effort to regain control and get his truck back on the highway, he overcompensated and crossed over the center line, striking the John Short vehicle.

The state trooper stated that the shoulder of the highway on the south side had been excavated and packed with sand, but the rains had washed the sand and caused a drop-off of several inches. He stated further that the condition of the north shoulder was such that it would not carry traffic.

The resurfacing work had been done by Ben Hogan Construction Company under a contract with the Arkansas Highway Department. The contract provided that "the contractor shall schedule his operations in widening existing pavement under traffic so that, in no case, shall trenches be open on both sides of the existing pavement at one time; the base course for widening on the side first opened shall be completed to the specified grade and shoulder material pulled back against the outside edge of the base course, and that side opened to traffic before the trench on the opposite side is opened."

My partner, Henry Woods, and I filed suit against Ben Hogan Construction Company on behalf of the John Short estate and the surviving widow and children. At the conclusion of the trial, the court instructed the jury that Hogan Construction Company had a duty to exercise reasonable care to comply with the provisions of the contract relating to the safety of the traveling public, and if such failure to exercise ordinary care contributed proximately to cause the injuries, they should find for the plaintiff.

In the complaint filed by the widow, as administrator, on behalf of herself, the children, and the estate of John Short, we asked for:

1. Compensation for the estate, for the pain and suffering experienced by John Short and all medical expenses and costs related to his death; and for pain and suffering experienced by John Short proximately caused by his injuries;

2. Loss of pecuniary support to the widow and children that John Short would reasonably have been expected to make over his life expectancy; and

3. Mental anguish of the widow and children arising out of the loss of their husband and father.

The pecuniary loss experienced by the widow and children could be established rather easily. John Short was employed by the Bell Telephone Company. His earning records were all available and his future with the company assured. It was a simple matter to establish the base of this pecuniary loss by multiplying his prospective earnings by his life expectancy and reducing it to present value. Mental anguish of the widow and children could be established by friends and relatives.

Proof of John Short's pain and suffering presented a greater challenge. The attorney for the insurance company frequently will take the medical records and, on examination of the physician, point out the schedule of drugs given the patient, in order to reduce pain and keep him comfortable. Physicians and nurses frequently, because of their constant contact with suffering, subconsciously, at least, may tend to become inured to the pain of the patient. Psychologically, this may be necessary in order to prevent the doctor or nurse from being overwhelmed to the human suffering to which they are exposed. Doctors and nurses, of necessity, have to be called in order to prove the nature and the extent of the injuries and treatment provided. Friends, relatives and neighbors are called in order to establish pain and mental anguish of the injured person. However, there are occasions when the nurse and the doctor will adequately meet this burden.

In the instant case, the nurse on duty in the emergency room was called. She testified that: she had helped load John Short in the ambulance and rode with him to Little Rock; they applied a Thomas splint to his left leg to completely immobilize it, packed him in sand bags, and gave him 200 cc. of blood in route because his blood pressure dropped about 15 points; he was conscious all the time and endured great pain and suffering.

Dr. Henry Hollenberg, the treating physician, was called as a witness. Dr. Hollenberg was the dean of Arkansas surgeons. He was tall, slim, erect, with gray hair. His bearing personified integrity, and he had the compassion of a Christian missionary, which, in a way, he was.

Dr. Hollenberg testified to Short's extensive injuries and surgical procedures:

It was necessary to operate a second time. He had another obstruction and terrible peritonitis. Three or four feet of bowel was removed and the ends reconnected. The wound became infected and he developed a suppression of urinal output. He survived five days after the second operation, but died from anuria an adrenal failure.

The last question directed to Dr. Hollenberg and his response was:

Q. Dr. Hollenberg, did your patient suffer any pain as a result of his injuries?

A. The patient was conscious up until the last four or five days. He was very uncomfortable and in pain most of the time. He suffered so extensively and fought so valiantly for his life, I was grieved because I could not relieve his pain. One Sunday morning, to show my concern, I brought him an orchid.

Defense counsel: "Objection--prejudicial."

The defense attorney moved to strike the concluding remarks of the good doctor's testimony. How strike from the minds of the jury this moving gesture of concern and care by the treating physician, who had traveled across the State of Arkansas, over hazardous roads in hot weather to reveal to a jury the tragic injuries his patient had sustained?

The jury, having received the case under the instructions of the court, was out for an interminable period of time. The most trying period for lawyers is waiting for a verdict. One agonizes over what he did not do that he should have done or what he did that might be injurious to his client's cause. We could go outside the courthouse and see through the window into the jury room. Henry and I could not hear the deliberations, but we could see that two jurors had separated from the others. From time to time, the other jurors would approach and what appeared to be heavy arguments would ensue. At long last, the verdict was returned for the widow, the children and the estate of John Short.

After the jury was discharged, we asked the foreman what had caused the delay. His prompt response was, "There were two muleheads who wanted to give the widow more money than you sued for."

Harold Hill, one of the passengers in the John Short vehicle, joined as a plaintiff in the suit by the widow of John Short. Hill had sustained fracture to the vertebrae in his low back, sustained a wage loss, and medical expenses. The jury returned a verdict for Hill.
Hogan Construction Co. paid off the judgment obtained by the widow and the children of John Short. However, Hogan appealed the Hill judgment, contending that the verdict was excessive, and that the court was in error in admitting into evidence the provision of the contract between Hogan and the Highway Department pertaining to public safety.

On appeal, the Arkansas Supreme Court held that the instructions of the trial court were correct--that the safety provisions in the contract were for the benefit of the traveling public. The Supreme Court further held that the instructions given by the trial judge to the jury that they could take into consideration the contract between Hogan and the Highway Department inserted for the protection of the traveling public was not error and that the admission of the safety provision of the contract into evidence was proper.

The Trial Lawyer Will Get The Facts: There is no eloquence like the eloquence of the FACTS. "Let the facts be known as they are, and the law will spring from the seed and turn its branches towards the light."

This case further illustrates that where there is a competent judge and good lawyers on both sides, the facts will be presented to the jury, truth will out, and justice will be done. In the John Short case, we got the facts. The widow, the children, and the estate were provided for--Justice was done and a grandfather consoled.