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March 13, 2014 Articles

Closing Arguments—Not Just a "Free-for-All," Part One

By Christopher G. Floreale

Most, if not all, courts provide a jury charge that instructs the jury that "what is said by the [attorneys] in summation, like what is said by them in their opening statements, or in the making of objections or motions during trial, is not evidence." N.Y. State Pattern Jury Instruction 1:5. But does that mean that attorneys are free to say whatever they want in their closing arguments?

Clearly, the answer is no. While closing arguments do allow for trial lawyers to instill some creativity into their delivery and hone their own courtroom style, there are certain guidelines that attorneys should be cognizant of when drafting a closing statement.

This two-part article will provide practical guidance for crafting closing statements through an examination of how courts have ruled on various types of arguments made to the jury—first, regarding legal, factual, and other technical issues, and second, on the use of personal information and rhetoric to evoke an emotional response. Understanding what may cross the line of what courts have allowed will go a long way toward avoiding jury arguments that could sink an otherwise case-clinching closing statement.

In General
The requirement that trial counsel confine their argument strictly to the evidence and to the arguments of opposing counsel does not mean that jury arguments must be sterile or nondescript. Rather, counsel has great latitude in discussing the facts and issues, and may discuss the environments or circumstances of the case, the reasonableness or unreasonableness of the evidence, and the probative effect, or lack thereof, of the evidence.

In jury argument, the facts of the case "may be related to history, fiction, personal experience, anecdotes, Bible stories, or jokes." Living Ctrs. of Tex., Inc. v. Penalver, 217 S.W.3d 44, 51 (Tex. App. 2006). Counsel has great latitude in argument, "but must keep within the evidence, not make statements calculated to inflame, prejudice, or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice, or mislead the jury." Green v. Charleston Area Med. Ctr., Inc., 600 S.E.2d 340, 341 (W. Va. 2004).

As a general matter, counsel is allowed broad latitude in summation and may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd. Bender v. Adelson, 901 A.2d 907, 919 (N.J. 2006). The right of counsel to discuss the merits of a case in argument to the jury, both as to the law and facts, is very wide, and counsel has the right to state fully his or her views as to what the evidence shows and as to the conclusions to be fairly drawn therefrom. An adverse party cannot complain if the reasoning is faulty or the deductions are illogical, as such matters are ultimately for the jury to decide. Cassim v. Allstate Ins. Co., 94 P.3d 513, 521 (Cal. 2004).

Arguments about Facts and Evidence

Argument must generally be confined to facts in the record. Although the law indulges a liberal attitude toward argument, particularly where the comment complained of responds to prior argument of opposing counsel, the court will not condone knowingly false statements to a jury in closing argument. Hoskins v. Bus. Men's Assurance, 116 S.W.3d 557 (Mo. Ct. App.  2003). The law forbids introduction into the case, by way of argument, facts that are not in the record and that are calculated to prejudice a party and render the trial unfair. McConnell v. Akins, 586 S.E.2d 688 (Ga. Ct. App. 2003).

Counsel may also argue facts of common knowledge. It is not error to refer during closing argument to matters within common knowledge. Irwin Cnty. v. Owens, 568 S.E.2d 578 (Ga. Ct. App. 2002). In Irwin, the plaintiff moved for a mistrial based on the defense counsel's statements during closing arguments. The plaintiff complained that the defense counsel improperly analogized matters irrelevant to the case during closing arguments. The trial court denied the motion for mistrial, and the Georgia Court of Appeals agreed. The court of appeals held that counsel can make analogies during closing arguments that are within common knowledge of the public.

Any evidence admitted without objection may be argued regardless of whether it was otherwise admissible. For example, in Schmidt v. Shearer, defense counsel's comments referring to evidence of a widow's settlement with other defendants did not constitute misconduct where the widow's attorney failed to object to trial testimony regarding the settlement. 995 P.2d 381 (Kan. Ct. App. 1999).

Counsel may draw inferences from the facts but may not ask the jury to speculate. For example, in Hoffman v. Oakley, a van owner's attorney was permitted to argue the issue of speed in his closing argument in a negligence action arising out of a collision between his client's van and an automobile. The argument was made in light of the accident reconstruction expert's testimony about skid tests he performed at the accident scene and stopping distances at various speeds, which would allow the jury to infer the automobile driver was exceeding the speed limit. 647 S.E.2d 117 (N.C. Ct. App. 2007).

In limited circumstances, counsel may draw adverse inferences from missing witnesses. An instruction and comment by counsel on an absent witness are proper only when, without reasonable explanation, a party fails to call a person of whom the party is aware and can bring to trial, who is friendly to —or at least not hostilely disposed toward—the party, and who can be expected to give testimony of distinct importance to the case. Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848 (Mass. 2001).

It is reversible error to allow reference in closing argument to a party's failure to produce a witness equally available to both parties. The question of whether there is "equal availability" of a witness to both parties at trial, as would disallow a closing argument reference to the failure to produce such a witness, depends on several factors: (1) one party's superior means of knowledge of the existence and identity of the witness; (2) the nature of the testimony that the witness would be expected to give in the light of his or her previous statements or declarations, if any, about the facts of the case; and (3) the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his or her personal interest in the outcome of the litigation and make it natural that the witness would be expected to testify in favor of the one party against the other. Campise v. Borcherding, 224 S.W.3d 91 (Mo. Ct. App. 2007).

Counsel may argue the credibility of expert witnesses. A closing argument may focus on an expert's response to permissible areas of inquiry, including the scope of employment in the pending case and compensation, the percentage of income derived from litigation-related matters, and the percentage of work performed for plaintiffs and defendants. A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness's financial incentive to continue the financially advantageous relationship. Rosario-Paredes v. J.C. Wrecker Serv., 975 So. 2d 1205 (Fla. Dist. Ct. App. 2008).

Arguments about Damages

In general. During summation in a personal injury action, plaintiff's counsel may ask for a specific amount for pain and suffering in the form of a lump-sum figure, as stated in the ad damnum clause of the complaint, or a figure based on evidence as a matter of fair comment. Miller v. Owen, 184 Misc. 2d 570, 709 N.Y.S.2d 378 (N.Y. Sup. Ct. 2000).

Golden-rule arguments. Urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position, constitutes a "golden-rule argument," which is improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. A.C. v. Bellingham Sch. Dist., 105 P.3d 400 (Wash. Ct. App. 2004).

Arguments Concerning the Law
Arguments must be based on the jury instructions. Where counsel believes that instructions are inadequate, the proper course is to request additional instruction by the court and not for counsel to undertake such additional instruction by way of argument to the jury. Lawson v. Nat'l Steel Erectors Corp., 8 P.3d 171 (Okla. Civ. App. 2000).

Counsel must discuss the law accurately. While as a general rule, counsel is prohibited from instructing the jury on the law, the rule not only does not prohibit counsel from discussing the law as set forth in the court's instructions, but encourages it, as long as the discussion states the law fairly and accurately. Rice v. Bol, 116 S.W.3d 599 (Mo. Ct. App. 2003).

It is improper to criticize the law, argue policy, or ask a jury to nullify a law in the interests of justice. In Boruch v. Morawiec, the court held it was improper for defense counsel to comment, during summation, that an Industrial Code section governing guarding of power-driven saws was a "stupid law." 857 N.Y.S.2d 103 (N.Y. App. Div. 2008).

Similarly, in Liggett Group Inc. v. Engle, the court held that arguments for nullification of the law have absolutely no place in a trial and violate state and federal due process by exposing defendants to liability and punishment based on lawful conduct. 853 So. 2d 434 (Fla. Dist. Ct. App. 3d Dist. 2003).

It is generally improper to refer to rules of procedure, legal maneuvering during litigation, or pretrial decisions of the court. In Casas v. Paradez, the court held that the implication by the plaintiff's counsel that the plaintiff's relative was unable to testify because the defendant's attorney had invoked a rule allowing him to keep the family members out of the courtroom was improper. 267 S.W.3d 170 (Tex. App. San Antonio 2008).

Similarly, in Federated Mutual Insurance Co. v. Anderson, the court held that comments on the trial court's exclusionary rulings are improper in closing arguments. 991 P.2d 915 (Mont. 1999).

Comments on the role of the jury may be permissible. An appeal to the jury to act as the community's conscience is not necessarily improper in a closing argument. That is their role. Freeman v. Blue Ridge Paper Prods., 229 S.W.3d 694 (Tenn. Ct. App. 2007).

Comment on the verdict form may be permissible. As long as closing arguments are based on the evidence, attorneys may suggest the correct way to fill out the verdict form. Clark v. Bres, 217 S.W.3d 501 (Tex. App. Houston 14th Dist. 2006).

Know the Rules
Common sense will often help attorneys make the right decisions when drafting closing statements. But with so much on the line, that may not be enough—it is critical to know what boundaries have been established by courts as to what is proper, and what is improper, to raise.

Part two of this article, to be published in the next issue of Minority Trial Lawyer, will explore how courts have ruled on the use of emotional appeals, injection of an attorney's own personal experiences and opinions, and the use of colorful rhetoric in closing arguments.

Keywords: litigation, minority trial lawyer, closing arguments, court rulings, facts and evidence, damages, jury

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