The Old Hammer

Most good arguments and analogies come from experience. I guess that is why I struggled as a young lawyer to come up with any decent analogies. Anyway, when I was 25, I represented a man in his 80’s who taught me my favorite argument for discussing “degenerative” conditions and “pre-existing” injuries.

An elderly couple hired me after their uninsured barn burned down. The barn suffered damage from hurricane Rita. The electric company turned the power back on to the barn without inspecting the building. When the power came on, the barn caught fire. The barn was full of old tools and a giant collection of the sort of random things an 80-year-old man accumulates over a lifetime and stores in his barn.

I asked the elderly couple to try to recall every item in the barn and the age. They returned with a 4-page list, scribbled in pencil on paper torn out of a spiral notebook. It took a while to decode the list, but I eventually converted it to a chart. Then I went to the local hardware store to get current prices. I made one column for the retail cost and another for my suggested depreciated amount.

Among the giant list of old tools was an old hammer (age unknown). My client noticed I was suggesting we only demand $10 for the old hammer when a new one cost $20. When he questioned the number, I tried to explain the concept of depreciation. His reply could not have been better: “My old hammer worked just fine and I don’t need half a hammer, I need a whole hammer.” I demanded the entire $20 and I came up with story below to deal with “degenerative” conditions and “pre-existing” injuries.

One day a young carpenter forgot his hammer at home, so he borrowed a hammer from an old carpenter he worked with. The hammer was 15 years old, back when they still used wooden handles. It had scratches and dings and it was rusted, but it still got the job done – it still drove nails as good as it ever did.

The young carpenter, being careless as young men sometimes are, dropped the old hammer from up high. When the hammer hit the ground, the wooden handle broke in two. The young carpenter knew a new hammer cost $20, so he decided to offer $10 for the old hammer. After all, it was 15 years old and beat up. (We already know the old man’s reply).

The defense wants you to discount the value of my client’s back injury because it wasn’t brand new, just like that young carpenter tried to discount that old hammer. My client’s back may not have looked the way it did 20 years ago, but it still got the job done just like that old hammer. And my client does not need compensation for half a back, or half of the wages he used to earn, or half his medical expenses, he needs and deserves compensation for a whole back, just like the old carpenter deserved compensation for a whole hammer.

(Extra note – do not overlook the “existing” requirement of pre-existing. In other words, a previous injury to a body party is different than a pre-existing injury).

By Aaron Broussard – Louisiana Advocates, January 2017

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