Don’t Make This Argument

I argued a medical malpractice case before the Tennessee Court of Appeals today.  Regular readers know that we prevailed in a med mal case in Maury County last year after a thirteen-day jury trial.  The case has been resolved as to all defendants but one, the ER doctor, and it was that case that was set for oral argument today.  The sole issue on appeal is whether the ER doctor should be absolved from his fault (he did not challenge the jury’s finding that his negligence contributed to cause the death of his patient) because of an alleged superseding cause.  The jury rejected the affirmative defense of superseding cause at trial, but the ER doctor is arguing that the conduct of another defendant is a superseding cause as a matter of law.

I heard several other oral arguments as we waited for our case to be reached.  I actually heard one lawyer say words to this effect:  if you do not accept my first argument, my throw-away  argument is blah, blah, blah.

My throw-away argument?  Who would pay attention to a self-described throw-away argument?  There are times you may properly call our opponent’s argument a throw-away argument, but if you think your own argument sinks to that level then I suggest you not make it.  And, if you have to make it, then at least call it something else, e,g, a secondary argument, another ground that requires reversal, etc.

By the way, I thought the argument described as a throw-away was a solid one.  I think the party will win the main point his lawyer advanced, but if not he should win on the secondary point.