We Could Have Won Moot Court
Steven B. Zwickel, Esq.
2019
One requirement for completing the program at the law school I attended was mandatory participation in a competition called Moot Court. Working with another law student, we were asked to put together oral arguments supporting a hypothetical legal case. My partner (the wonderfully calm Susan Bergman Addamo) and I did the best that we could, but we never made it past the first round of the competition; we got no feedback and never found out what we should have done better.[1]
This has bothered my for more than 40 years, but now I think I know what we should have done way back when.[2]
Facts of the case
A man, identified as Plaintiff, happened to witness a horrible automobile accident, in which a person named Victim was mutilated and killed by a car driven by Driver. Plaintiff claimed that, as a result of having seen this terrible sight, Plaintiff suffered from insomnia, flashbacks, emotional turmoil, and other psychological effects. Thus, Plaintiff sued Driver for damages for the negligent infliction of severe emotional distress.
The Law
The case was governed by the law of torts. A tort is what lawyers call a wrongful act that causes someone else to suffer enough of a loss or harm to result in legal liability for the person who commits a tortious act. Examples of torts include assault, battery, causing an injury (deliberately or by negligence), causing financial losses, or invading someone’s privacy.)
The Intentional Infliction of Emotional Distress is recognized as a tort in New York and it was and is grounds for a legal claim[3]. However, in New York in 1974, unintentionally inflicting emotional distress was not considered a valid basis for a legal claim. In other words, deliberately scaring someone so that they have a heart attack is a tort, but accidentally frightening the hell out of someone is not.
In our case, the lower court ruled that New York did not recognize Negligent Infliction of Emotional Distress as a tort. That Plaintiff would witness the accident and suffer emotional distress afterwards was deemed “unforeseeable”, so the court ruled in favor of Driver. Plaintiff appealed, and we were supposed to argue Plaintiff’s appeal of the original judgment before the moot court.
Our (faulty) Argument
The best argument we could come up with was that New York should change the law and recognize Negligent Infliction of Emotional Distress as a tort. A reckless driver, we said, whose behavior resulted in an accident, should be held liable for all the consequences of that behavior—foreseeable or not. Asking an appeals judge to overturn a longstanding legal principle was a weak argument and we deserved to lose.
How we could have won
Had we followed the progress of psychological medicine in recognizing the aftereffects of witnessing some awful event, we might have come up with better support for our argument.
The idea that some people have strong, adverse reactions to witnessing horrifying events is not a new one, but for a very long time it was viewed as a “female” problem. For many centuries women were seen as subject to an illness called hysteria, which was characterized by symptoms like crippling anxiety, trouble breathing, fainting, nausea, nervous tics, insomnia, etc. It was believed that the cause of these symptoms lay in the woman’s uterus, thus the term hysteria, from the Greek foruterus. Obviously, men could not suffer from hysteria because they lacked a uterus.
In the old days, women were generally regarded as the “weaker” sex, ruled by emotion rather than by reason, and hysteria, also called neurasthenia, was just an extreme expression of typical female traits.
Over time, ideas about hysteria began to change; by the 1800s, doctors began see hysteria as a mental, rather than a physical disorder. The minds of women who were hysterical were perceived to be “alienated” from reality and a new medical specialty arose to care for them—the Alienists—the ancestors of today’s psychologists and psychiatrists. Near the end of the 1800s, doctors began to accept the theories of Sigmund Freud, including the idea that hysteria was not physical, but an emotional, internal illness that could be dealt with by trained psychologists.
It should come as no surprise that women in the Victorian Era and well into the 20th Century had many reasons to become hysterical. For example, It was a time of severe sexual repression that left women bewildered, frightened, and ignorant about their own sexuality. Many, if not most, women lost babies and young children to disease and infection in the days before people knew about germs and sanitation. [One of my grandmothers had 5 children die as babies and toddlers; my father was the only child she had who lived to adulthood.]
Life was full of things that could traumatize any woman, regardless of class, education, or physical health. [My other grandmother experienced something similar to our Plaintiff. She happened to be on the scene when a streetcar in New York City ran over a woman and severed her leg. Grandma pulled the woman to the curb and wrapped something around the woman’s leg as a tourniquet. My mother, who was just a little girl at the time, witnessed this and carried the memory of this horrifying event with her for 60 years]
Women in the bad old days were supposedly suffering from hysteria, but men with similar symptoms were diagnosed with “nerves.” [In 1866 hysteria was joined by a new diagnosis that had a similar set of symptoms: it was called railway spine, and it was a nervous disorder believed to be caused either witnessing the accidents that the dangerous railways of the time generated in large numbers or by what we now call whiplash. Unlike hysteria, railway spine affected both men and women. -Wikipedia]
Men were supposed to be the stronger sex—stoic, rational, and unemotional—the exact opposite of women. Real men were tough; they didn’t cry or express emotions.
It’s not clear exactly when or how that began to change, but awareness of the fact that men did have emotional reactions came from experience on the modern battlefield. In spite of the carnage of the pre-firearm battlefield, there are few records of men having an emotional reaction afterwards.
One example of a soldier suffering the aftereffects of combat is the lead character in Shakespeare's 1601-04 play Othello. The play is based on a story from the mid-16th century that mayhave started with an actual incident involving a Moorish soldier in Venice. In Othello, Shakespeare describes a combat veteran who suffers from anxiety, anger, paranoia, and depression—all symptoms of what we now call post-traumatic stress syndrome. Shakespeare has the villain Iago refer to Othello's condition as "epilepsy" in Act IV when Iago lies about having slept with Othello's wife, and Othello passes out. That is just one of Iago's many lies. Shakespeare's play demonstrates that more than 400 years ago people were aware of the after effects of combat.
One example of a soldier suffering the aftereffects of combat is the lead character in Shakespeare's 1601-04 play Othello. The play is based on a story from the mid-16th century that mayhave started with an actual incident involving a Moorish soldier in Venice. In Othello, Shakespeare describes a combat veteran who suffers from anxiety, anger, paranoia, and depression—all symptoms of what we now call post-traumatic stress syndrome. Shakespeare has the villain Iago refer to Othello's condition as "epilepsy" in Act IV when Iago lies about having slept with Othello's wife, and Othello passes out. That is just one of Iago's many lies. Shakespeare's play demonstrates that more than 400 years ago people were aware of the after effects of combat.
That changed during the 19th century. People began to notice that some soldiers, and some civilians, with no physical evidence of wounds, were acting strangely. In 2015 the National Museum of Civil War Medicine mounted an exhibit on the mental health of Civil War soldiers, some of whom were diagnosed as having “acute mania” and “soldier’s heart” or “irritable heart”. Clearly these men were suffering from the aftereffects of combat.[4]Accounts of the survivors of the bombardment of Vicksburg during the American Civil War include psychological trauma to both men and women[5].
It was the First World War that really opened the door to the idea of men reacting to horrifying events. Over the course of the 20th century, doctors began to understand that something terrible happened to men who went to war. It was called "shell shock"[6]and “gas hysteria” in the First World War.
Doctors also revived an older term, neurasthenia, to describe a psychiatric disorder which was the result of the terrors of modern warfare. Exact numbers are hard to find, but as many as 80,000 British soldiers suffered from shell shock in WWI. Unfortunately, some victims were stigmatized for not being manly enough, for cowardice, and for shirking.
In WWII, the condition was called “battle fatigue” and soldiers were said to have “a thousand-yard stare” to describe the blank, unfocused gaze of men who have become emotionally detached from the horrors around them.
In the Korean War the condition was diagnosed as "operational exhaustion.”
In the 1960s, “combat fatigue syndrome” or “combat neurosis” was recognized as a problem for Vietnam War veterans. Nowadays, the condition is called Post-Traumatic Stress Disorder (PTSD). PTSD was not officially recognized by the American Psychiatric Association until 1980, six years after we argued our case in moot court.
There were articles published in professional psychiatric and psychological journals about PTSD in the 1960s and 1970s, but, even if we’d known about them, I don’t think we law students would have had access to them. {Before the internet, you had to go to an academic library to find journal articles in a specialized field. We didn’t have any way of doing that.}
The keyword we missed was “stress”; had we used that term, we might have found articles that could have led us to the growing field of PTSD. Stress management books and articles didn’t really become popular until the growth of the self-help movement in the late 1970s and 80s.[7]
We could have made our arguments stronger
Had we known about PTSD, we could have told the story of hysteria—how it was once considered a “women’s problem” and over time, as described here, it became clear that terrifying events affect both men and women. We could have demonstrated that, while hysteria is no longer recognized by as a medical disorder, a strong emotional response to terrifying events, as Sigmund Freud noted, can affect both males and females.
If Driver caused the accident by negligence, then we would argue that Driver is responsible for any consequences, regardless of whether they were foreseeable or not. PTSD is a real medical condition and, whether caused by intentional acts or by negligence, it should be considered valid grounds for a tort.
After 44 years, I rest my case.
