The Right to Trial by Jury Shall Be Preserved
Seventh Amendment
To The United States Constitution

Pat Brinegar was 22 years of age, paralyzed, totally disabled, and unable to work. He had no means of paying off mounting debts nor any way of supporting himself, his wife and his two-year-old daughter.
Pat was injured when he was working as a crew member on a motor boat on the Arkansas River. Henry Woods, my law partner, and I met with Pat in our office. He was in a wheelchair. He told us his story. He was upbeat and optimistic. He was going to get well. He had a contagious Irish smile. We immediately wanted to help him. We thought a jury might feel the same way.
The jury system with its human frailties is the best ever devised to decide controversies between citizens or to stand between an individual citizen and the state. Jurors' votes are not dictated by financial interest in the case, career considerations, lobbying by special interests or campaign contributions. We have confidence in our judicial system. We have an abiding faith in the wisdom of "the twelve good men and true."
The vast majority of juries, by their verdict, approach justice. Justice, like happiness, is constantly pursued but never completely realized. Juries do substantial justice, and if in isolated cases they seem to fall short, fault may be found not with the jury or the system, but the manner in which the case was tried. This responsibility lies, principally, with the lawyer and the trial judge.
One of the rewards of being a trial lawyer is an intangible one - the human relationship, the bond formed between client and the lawyer during the days of painstaking preparation and the ordeal of trial. This relationship begins with the first visit and continues with the search for the facts, the discovery proceedings, jury selection and trial. The lawyer has the duty to do for his client what the client would do for himself, were he able. To accomplish this, the lawyer must identify with his client - walk in his shoes, share his sorrow, understand his frustrations when harassed and hounded by collection agencies.
A lawyer cannot acquire the desired identification with his client merely by office visits. He has to go where the client lives - the home, the trailer park, the rehabilitation center. In the wrongful death case of a breadwinner, the lawyer must go into the home, get to know the family, the children, their plans, hopes, and aspirations.
When the lawyer achieves this kind of identification, has gotten the facts, and briefed the law, he will be eager to tell his client's story. When the moment comes for him to go to the jury, he will be able to speak for his client with conviction. He will be motivated by a passionate desire to help his client. This feeling for this client as he presents his case will hopefully be shared by the jury -- and they, too, may wish to help.
Pat Brinegar was employed by San Ore Construction Company. San Ore was engaged in the construction of a dam across the Arkansas River. Seven of the fourteen gates had been completed and the others were surrounded by a cofferdam. For the purpose of raising the upstream water level, the superintendent of San Ore ordered all the gates closed except one adjacent to the cofferdam. By 1:30 p.m., the water level was four or five feet above the dam. The flow of water through the gate was extremely turbulent, and there was a waterfall effect. The superintendent ordered a 22 year-old operator of a boat, designated the "Hal-B," and its deckhand, Pat Brinegar, to take the boat through the open gate and return with an empty water barrel. On the return trip, the Hal-B capsized. Pat Brinegar was struck by the boat and his spinal cord severed.
Maritime law came into the courts of Arkansas with the opening of the Arkansas River for navigation. Maritime law was a new field to Arkansas lawyers and to the judges. Brinegar filed suit against San Ore Construction Company in the U.S. District Court, Eastern District, Pine Bluff Division. U.S. District Judge Oren Harris presided at the trial. The basic issue was whether Pat Brinegar was a member of a crew of a vessel. The defendant contended that this was a workers' compensation case. In fact, the attorney for the defendant who tried the initial stages of the case, in his opening statement, told the jury:
If Pat Brinegar was a member of the crew of a vessel, you couldn't put enough money in the courtroom to compensate him.

Judge Harris ruled, as a matter of law, that Pat was a member of the crew of a vessel.
The issues of the defendant's negligence and whether or not the defendant had violated a Coast Guard regulation were ruled to be questions for the jury. (For a brilliant treatise on maritime law and its application in the Brinegar case see Judge Oren Harris' opinion in Brinegar v. San Ore Construction Company, 302 F.Supp. 630 (E.D. Ark. 1969); see also a comprehensive article by Henry Woods entitled, The Law's Concern With Those Who Go Down To The Sea in Ships: San Ore Construction Company, 23 Ark.L.Rev. (1969).
Pat Brinegar was our last witness. He had not been in the courtroom. He was brought to the courthouse by ambulance and transferred from a stretcher to a wheelchair in the lobby of the courthouse.
Pat testified from his wheelchair as follows:
Q. Pat, how are you doing?
A. I'm doing fine.
He was then given the opportunity to tell his story--not one whimper or complaint or pitch for sympathy. The last question I asked Pat was:
Q. Pat, if you could do anything you wanted to do in this world,
what would you do?

A. I would buy me a stock car and outfit it so I could drive it,
and I would enter the stock car races all over the country.

Fantastic! Upbeat all the way. You could feel the jurors' hearts go out to that young man.
After Pat testified, we rested our case and the court excused the jury. We went into the court chambers for the defendant's motions. When the motions were denied, the insurance company made an offer. For the time and place, it was a substantial one. Expecting an offer, we had asked Pat to wait in the courtyard. We went downstairs and conferred with him in the ambulance. We told him the offer, pointed out that this amount of money would support him and his wife, pay off his debts and give him independence. We explained that there is always a gamble in going to the jury, that all twelve jurors must agree on the verdict. Pat listened to our story and then, flashing that Irish smile, said: "Let the jury decide."
We let the jury decide. They returned a verdict for Pat in an amount double that offered by the insurance carrier for the defendant, San Ore Construction Company.
Predictably the defendant filed a motion for a judgment n.o.v. (notwithstanding the verdict) and for a new trial. The Defendant's motion contained two serious charges: the jury verdict was excessive, and the jury was unduly influenced by Brinegar and the Brinegar family.
The following allegation was made:

During a recess at the close of the plaintiff's case, the plaintiff, then on a hospital cart and with his three year old daughter and his young attractive wife standing by his side, were permitted to engage in displays of affection, embracing, emotion and hysteria in the presence of the jury.

The court set a date for a hearing on the defendant's motion in order to give the parties an opportunity to present evidence. No witnesses were produced by the defendant to substantiate the above allegation. Attorneys for Brinegar submitted affidavits denying defendant's contention. Notwithstanding the defendant's failure to submit evidence in support of its allegation, the court made a finding based upon its own observations during the trial and stated:
The following facts, however, are known to the Court and bear on the allegations. Plaintiff was a patient in the Rehabilitation Center in Hot Springs and did not appear at the trial until the morning of the third and last day. He was brought to Pine Bluff by ambulance and taken by ambulance cot to the third floor of the Federal Building, where the courtroom is located. Outside the elevator Brinegar was transferred to a wheel chair and rolled into the courtroom to give his testimony. He testified between twenty and thirty minutes. His testimony was given in a calm, unemotional manner. There was not the slightest display of emotion by him or any member of his family. (Emphasis supplied.)

The defendant also made the following allegation:
The plaintiff's wife, on the closing day of the trial, and as the jury left the Courtroom, took a seat next to the aisle which the jury was required to use, where the plaintiff's wife took her child in her lap and again exchanged affections with the child and gazed soulfully into the eyes of each of the jurors as they passed single file by her seat.

Commenting on this allegation, the court stated:
This Court is in an excellent position to dispose of this allegation. The Court at all times had the Brinegar family under close observation. Besides plaintiff's wife, his parents, mother-in-law and grandmother attended the trial. His daughter was in the courtroom only on the morning of the final day. His wife and grandmother testified. By the agreement of defense counsel, they were excused from the rule and could sit in the courtroom during the trial. The conduct of plaintiff's wife was at all times exemplary. She testified factually and unemotionally. She made no outburst or shed no tears either on the stand or in the courtroom. Her presence in the courtroom as observed by the Court was completely unobtrusive. (Emphasis supplied.)

On the question of the excessiveness of the verdict, the court reviewed the evidence.
At the time of his injury, Brinegar was 23 years old with a life expectancy of 46 years. He was in good health, happily married, and the father of a three year old daughter. He was an excellent mechanic with a good work history.
It was calculated that Brinegar's future earning loss and his future medical expenses would exceed the amount of the award returned by the jury. The doctors testifying agreed that all of his life Brinegar would be faced with recurring kidney, lung and skin problems which would require frequent periods of hospitalization and specialized treatment.
Brinegar's future wage loss and medical care, in excess of the jury verdict, it reached without any consideration being given to the "intangible" elements of damages which must be accorded great weight. His pain, suffering and mental anguish (particularly the latter) could justify a substantial portion of this verdict.
In addition, Brinegar could justifiably be awarded for the permanency of his injuries -- the almost complete loss of bodily function, loss of his ability to enjoy life's non-work connected activities are embraced within their element of damage -- the loss of the ability to enjoy sports, to take his daughter for a walk, or to the circus or to church. He can never again drive an automobile or engage in his principal hobby which was building racing cars. His wife, once a loving companion, must now become his lonely nurse.
Having reviewed the evidence, the judge concluded:
Besides the intangibles of pain, suffering, mental anguish, and permanency of the injury, the jury was instructed that Brinegar was entitled to recover for the visible nature of his infirmities. When all these intangibles are considered, the jury could justifiably give them equal or even greater weight than the economic losses sustained by this young man. (Emphasis supplied.)

Having reviewed the economic damages and the intangible losses sustained by Brinegar, the court made this finding with reference to defendant's motion to set aside the verdict:
A verdict will not be set aside in a case of tort (personal injury) for excessive damages, unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law, by which the damages are to be determined. . . .unless the verdict is so excessive or outrageous, . . .as to demonstrate, that the jury have acted against the rules of law, or have suffered their passions, their prejudices, or their perverse disregard of justice, to mislead them. (Addition made.)

The Brinegar case is significant:

1. Pat was provided funds for his future care and to compensate him for the injuries wrongfully inflicted by the defendant;

2. The Brinegar case was the first admiralty case filed in Arkansas, the Arkansas River being a navigable stream falling under admiralty jurisdiction;

3. A verdict of $1 million, not impressive by current inflated standards, was the largest admiralty verdict returned at that time;

4. Allegations that a jury had returned an excessive verdict based upon sympathy and had been unduly influenced, a charge one frequently hears about jury verdicts, was overwhelmingly refuted by the evidence and the findings of the court; and

5. A jury verdict should not be disturbed or set aside if it is supported by the evidence, not influenced by improper conduct, and is not shocking to the conscience of the court.

When Pat Brinegar testified in the courtroom, he told his story, was not emotional, made no pitch for sympathy, and in the face of all the medical evidence to the contrary, he was optimistic about the future, and demonstrated indomitable courage.
The jurors had an opportunity to see and hear Pat Brinegar. Pat had an opportunity to see the jurors as they were; as people, as people like his neighbors, as people like himself. Pat had confidence that the jury would do what was right and he told his lawyers: Let the jury decide."
During the course of Pat's trial, John Shephard from St. Louis assumed the role of lead counsel for the defense. John was a frequent and popular speaker at bar meetings and functions. One of his favorite stories, which he told with great humor, was how he lost a multi-million dollar verdict to a former Governor and his partner down in Arkansas. With poetic license and embellishment, he told how, when the judge was presented a problem, he would turn to Henry Woods (my law partner) and ask, "Mr. Woods, what is the law on that?" Then John would add with glee the punch line of this story:
During Mr. McMath's summation for the plaintiff, I had occasion to object on the grounds that his argument was not supported by the facts or was irrelevant or prejudicial. The third time I objected, Judge Harris, the trial judge, leaning forward in his chair, peering over his spectacles, admonished me saying: "Mr. Shephard, don't interrupt the Governor while he is talkin'."

In order to raise the jury to heights of their opportunity to do justice, a trial lawyer may have a duty in his closing argument to fuse empathy and persuasion, shed a tear, quote a poem befitting the facts and the atmosphere in the courtroom. Pat Brinegar, in his brief courtroom appearance, displayed his indomitable courage and irrepressible hope for the future. Henry Woods rose to the occasion and, in a masterful and moving argument, closed with a quote from "Invictus:"

Out of the night that covers me
Black as the pit from pole to pole
I thank whatever gods may be
for my unconquerable soul.

In the fell clutch of circumstance,
I have not flinched nor cried aloud;
Under the bludgeoning of chance,
My head is bloody but unbowed.

And that is the way Pat Brinegar is. His "head is bloody but unbowed."
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