Volume 18, Number 6
September 2001

TRIAL PRACTICE

What You May Not Say to the Jury

By Timothy J. Conner

Many of the rules regarding what you may and may not say to the jury are counterintuitive. How many times have you heard someone say, "At least he has insurance"? Or how many times have you heard someone comment, "Just put yourself in her shoes and think how you might feel"?

While such comments are customary and make perfect sense outside the courtroom, they are inappropriate in a court of law. The underlying principle is that a jury's decision should be based on the relevant facts in evidence and the applicable law, not sympathy, prejudice, emotion, or some other extraneous matter.

Rule 3.4 of the Model Rules of Professional Conduct, Fairness to Opposing Party and Counsel, prohibits a lawyer from the following: alluding to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; asserting personal knowledge of facts in issue, except when testifying as a witness; or stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. Most states have adopted this rule, or a similar one, as part of their rules of professional conduct.

The Golden Rule argument. Probably the best known of the forbidden arguments, the Golden Rule argument is an improper appeal to sympathy that occurs when a lawyer asks the jurors to place themselves "in the shoes of" the client. However, do not confuse invoking the Golden Rule with asking jurors to use their own life experiences and common sense in analyzing the evidence and reaching a fair verdict. That is permissible, and ordinarily, the court will instruct the jury to that effect.

Personal opinion as to the justness of a cause, credibility of a witness, or culpability of a civil litigant. A lawyer should not tell jurors how she thinks or feels or attack a witness or litigant unjustly. For instance, saying that the opposing party's witnesses are "liars and perjurers" and accusing them of "various crimes, including theft and conspiracy" where no evidence exists to support such statements may result in a mistrial.

Even laudatory comments such as vouching for the credibility of a witness, may violate the rule against commenting on the credibility of a witness, and result in the court's finding that only a new trial could cure counsel's inappropriate arguments.

Personal knowledge of facts. A lawyer may not comment from personal knowledge, unless, of course, that attorney is a witness. Facts can be interpreted in many different ways, and you may legitimately put a spin on the evidence. You are entitled to comment on the evidence in the case and argue inferences that may be drawn reasonably from the evidence. But there is a line between fairly commenting on evidence in the record and misstating what the evidence was or referring to evidence that is not in the case. Do not stray from the facts in evidence.

Blatant appeals to sympathy. A lawyer may not ask a jury to decide a case based on passion or sympathy as opposed to the evidence. The lawyer may not properly appeal to the jury's sensibilities regarding that passion and sympathy as the basis for its decision, apart from the evidence.

Relative size and wealth of the parties. Do not make reference to the size or wealth of one of the parties to the litigation in comparison to the other party. In federal court there is a standard jury instruction given by the judge that the case must be considered and decided as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. For that reason, courts have found comments regarding the wealth or size of a party, and questions designed to elicit evidence related to that issue, to fall outside the scope of legitimate advocacy. At the same time, issues regarding the size or wealth of a party may well become relevant in the context of a trial for punitive damages.

Insurance coverage. Counsel may not ask or argue about insurance coverage unless coverage is at issue in the case. This is the prohibition that courts seem to enforce most consistently and with the most vigilance. Lawyers who want to avoid retrying their cases should take special heed of Rule 411 of the Federal Rules of Evidence, which states that evidence of liability insurance coverage is inadmissible to show that a person "acted negligently or otherwise wrongfully." Evidence of insurance against liability is not barred, however, if offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Not every mention of the words insurance or claims adjuster will justify a new trial, but the courts show little tolerance for violations of this rule.

Settlement discussions. Any reference to settlement discussions is inappropriate and will potentially result in a new trial. With the advent of mediation conferences in nearly every civil case, this rule is becoming increasingly important. Most states protect mediation conferences with strict privilege and confidentiality rules providing that any information disclosed many not be used against the party at a later time.

Federal Rules of Evidence Rule 408 includes conduct or statements made in the context of settlement negotiations. You may offer such evidence for another purpose, such as to prove bias or prejudice of a witness, to counter a contention of undue delay, or to prove an effort to obstruct a criminal investigation or prosecution. Generally speaking, however, you may not get such evidence before the jury even to imply that it establishes liability on the merits.

Unjustified comments about the other side. A lawyer may not make unjustified aspersions on an adversary's counsel or a party's or witness's character or motive. The qualifying term here is unjustified. There are circumstances where it is fair, indeed necessary, to comment on the motive or character of a party or witness. While closing argument is designed to help the jury understand the issues in a case by applying evidence to the applicable law, and not to inflame the passions and prejudices of the jurors, it is not improper for counsel to state during closing argument that a witness "lied" or is a "liar," provided such characterizations are supported by the record.

Appeals to bias. A lawyer may not play on the fact that a party is from another state or country, or of another race or ethnicity, as a reason for the jury to find against her. These types of comments are an effort to create an us-against-them mentality and rally the jurors to believe that they are protecting the interest of their community.

What if opposing counsel violates the rules? If opposing counsel violates the rules, many courts require that you object to the offending statement or run the risk of waiving any complaint at a later time. In the absence of an objection, many courts will view a later complaint under a "plain error" or "fundamental error" standard. Both standards present extremely high hurdles that you can clear in only the rarest case. If the judge sustains an objection, a curative instruction should follow. If a curative instruction does not solve the problem, you will need to decide whether to move for a mistrial.

Timothy J. Conner is a partner in the Jacksonville, Florida, office of Holland & Knight LLP.

This article is an abridged and edited version of one that originally appeared on page 36 of Litigation, Spring 2001 (27:3).

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