Being emotional is allowed. It is often said that we cannot hide from our feelings. In some cases, appealing to that part of human nature in jurors is acceptable—if it is kept focused on the evidence. For example, in Watkins v. Cleveland Clinic Foundation, 719 N.E.2d 1052 (Ohio Ct. App. 1998), a medical malpractice plaintiffs' rebuttal closing argument stated, "If you are inflamed, it's because the facts inflame you. It inflamed me. But I'm not here asking you to punish these people." The court held this was a fair comment on the evidence because to prohibit jurors, and counsel, from having strong feelings in the case was asking the impossible, considering the uncomplicated nature of the medical procedure that led to the patient's injury and the tragically severe injuries that followed, leaving the patient in a persistent vegetative state.
Appealing to sympathy is generally improper if not based on the evidence at trial. By contrast, inTentoni v. Slayden, 968 So. 2d 431 (Miss. 2007), rev'g 968 So. 2d 492 (Miss. Ct. App. 2006), the court held that sympathy-invoking statements made by the defendant's attorney during the closing argument of a personal injury lawsuit were neither relevant nor based on the evidence and, on their face, appeared to have been intended to ignite the jury's passions in favor of the motorist. This included statements that the lawsuit had been going for six years and the defendant driver had been carrying this burden along with the uncertainty, insecurity, and stress that went along with the case; the driver had survived two heart attacks and was taking heart medicine; and the defendant had been the object of the plaintiff's fixation and her obsession for six years.
In Fehrenbach v. O'Malley, 841 N.E.2d 350 (Ohio Ct. App. 2005), the court held it was improper for defense counsel to appeal to sympathy for a pediatrician, for example, by asking for a verdict that would allow the pediatrician to "continue to practice" and implying he would be forced out of practice if the jury returned a large verdict.
Appeals to prejudice and other negative emotions are improper. When the purpose of a reference to race, nationality, or religion by trial counsel is to inflame the passions of the jury, the reference is improper and prejudicial. Tierco Maryland, Inc. v. Williams, 849 A.2d 504 (Md. 2004).
In McArdle v. Hurley, 51 A.D.3d 741 (N.Y. App. Div. 2d Dep't 2008), the court held that the inflammatory conduct of defense counsel in the personal injury action of a pedestrian struck by car in a crosswalk so contaminated the proceedings, it deprived the pedestrian of a fair trial, warranting a new trial on the issue of damages. This conduct included the defense counsel's comments that the disability retirement of the plaintiff's husband was evidence that her entire family was seeking to "max out in the civil justice system."
In a cigarette smokers' class-action lawsuit against tobacco companies seeking damages for injuries allegedly caused by smoking, the court held that the arguments of plaintiffs' counsel, which inflamed the predominantly African American jury panel with racial pandering and pleas for nullification of the law, were improper. The plaintiffs' counsel juxtaposed the companies' conduct with genocide and slavery, and counsel repeatedly urged the jury to emulate civil-rights heroes by fighting "unjust laws" protecting the right to sell cigarettes. Liggett Group Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003).
Comments on a party's wealth or poverty are generally improper. In Werneck v. Worrall, 918 So. 2d 383 (Fla. Dist. Ct. App. 2006), the court held that references during argument to sales generated by the defendant's furniture store and to the number of truck trailers owned by the furniture delivery service were improper comments on the defendant's wealth.
Similarly, in Olson v. Richard, 89 P.3d 31 (Nev. 2004), a plaintiff homeowners' construction defect action, the court held that the remarks of counsel for the defendants, informing the jury that his clients were not wealthy people, were improper.
However, contrast the above with Target Stores v. Detje, 933 So. 2d 844 (Fla. Dist. Ct. App. 2002), a slip-and-fall action against the retail store. In this case, the court held that the plaintiff's attorney's references to the store as a "big corporation" were not improper because, taken in context, the comments were not an invitation to decide the case based on the financial status of parties.
Mentions of vengeance and sending messages are generally improper unless punitive damages are being claimed. In Ocwen Financial Corp. v. Kidder, 950 So. 2d 480 (Fla. Dist. Ct. App. 2007), an action alleging sexual harassment and other claims against an employer, the closing argument made by two former employees urging the jury to send a message to the employer was not improper, where claims for punitive damages were submitted to the jury.
Contrast the above with the case of Nishihama v. City and County of San Francisco, 112 Cal. Rptr. 2d 861 (Cal. Ct. App. 2001), which found that any suggestion in counsel's argument that the jury should send a message by inflating its award of damages would be improper where punitive damages may not be awarded.
Suggesting that the verdict will have a personal impact on the jurors is improper. In Schoon v. Looby, 670 N.W.2d 885 (S.D. 2003), a malpractice trial, a doctor's counsel's statement during final argument that the hospital was a nonprofit corporation owned "by all of us" was found to be a misstatement of fact because the hospital was owned by a health-care entity. The court found this to be an attempt to persuade by improper means, in that it could only be interpreted as an attempt to convince jurors that if the hospital had to pay, jurors as "owners" would in some way have to pay as well.
Similarly, the court in Thibodeau v. Slaney, 755 A.2d 1051 (Me. 2000), found improper a plaintiff's closing argument that if the jury did not award the plaintiff damages, then the burden for payment of his medical expenses would fall upon the public and the taxpayers.
Prohibitions exist against attorneys injecting their own personal experiences, knowledge, and opinions. In closing arguments, it is usually best to keep one's own opinion to oneself. For example, in Lingle v. Dion, 776 So. 2d 1073 (Fla. Dist. Ct. App. 2001), it was found that an attorney's expression of his personal opinion as to the credibility of a witness, or his personal knowledge of facts, is entirely improper. The court stated that while an attorney is given broad latitude in closing argument, his or her remarks must be confined to the evidence, the issues, and inferences that can be drawn from the evidence. Personal attacks on the opposing party and counsel are improper.
In SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997 (Fla. Dist. Ct. App. 2008), a slip-and-fall case, the court held that the plaintiff's counsel's argument implying that defense counsel was hiding evidence was egregious and prejudicial to the defendant shopping mall, given absence of any evidence showing that the shopping mall or its defense counsel hid evidence or acted improperly.
Personal or character attacks not supported by evidence can cross the line as well. In Roetenberger v. Christ Hospital, 839 N.E.2d 441 (Ohio Ct. App. 2005), a medical- malpractice and wrongful-death action, the court held that remarks by counsel for the physician during closing argument, which attacked the husband who had brought the action after his wife had died, the husband's counsel, and his witnesses, were inexcusable, unprincipled, and clearly outside the scope of closing argument. The court found that the remarks were clearly designed to arouse the jury's passion and prejudice and that the defense counsel made various assertions and drew inferences that were not supported by the evidence. The defense counsel painted the husband, his attorney, and plaintiff's witnesses as greedy, empty-hearted people without souls who were manipulating the lawsuit and "branding" a good doctor for the sake of money.
The consequences of injecting inferences into closing arguments were severe in Johnides v. Amoco Oil Co., 778 So. 2d 443 (Fla. Dist. Ct. App. 2001), in which the court found that a gas station owner's counsel's closing argument, boldly and unashamedly accusing counsel for the neighboring property owner of conspiring with the neighboring owner's expert to commit a fraud on the jury, warranted reversal of judgment for the gas station owner in the neighboring owner's action for ground contamination and remand for a new trial.
Finally, in Schoon v. Looby, 670 N.W.2d 885 (S.D. 2003), a trial for malpractice and intentional infliction of emotional distress, the court held that a doctor's counsel's accusations that the plaintiff's lawsuit was nothing more than playing the lottery were only meant to inflame the jury and were beyond the bounds of proper final argument.
Use of Rhetoric
Epithets and colorful characterizations can be made. Although prosecutorial arguments may not denigrate opposing counsel's integrity, harsh and colorful attacks on the credibility of opposing witnesses are permissible. People v. Parson, 79 Cal. Rptr. 3d 269 (Cal. 2008).
In an action brought against a railroad by an employee, Burrows v. Union Pacific Railroad Co., 218 S.W.3d 527 (Mo. Ct. App. 2007), the court denied the defendant railroad's motion for a mistrial based on the argument of the employee's counsel that the employer and railroad were "more concerned about their profits than they were about safety." The court held this was not an abuse of discretion and found that the argument was within counsel's latitude and discretion to argue.
In Becht v. Palac, 740 N.E.2d 1131 (Ill. App. Ct. 2000), a medical-negligence action, the plaintiff's counsel stated during closing arguments that the defendant physician handed out steroidal medication, which allegedly caused the plaintiff to develop bone disease, like "candy." The court held that, although inflammatory, it was a fair comment on the evidence and thus the statement was not improper.
Name-calling can be permissible to a certain extent if, as discussed above, it stays focused on the facts. And it can go both ways. In Clark v. Bres, 217 S.W.3d 501 (Tex. App. 2006), the court held that a homeowner's closing argument that referred to a contractor as a liar, a thief, and a fraud did not constitute an improper jury argument. The court found that the argument discussed matters in evidence that supported the argument that the contractor was a liar, thief, and a fraud—and, during the defendant contractor's closing argument, his attorney denied that the contractor was a liar, a thief, or a fraud.
Knowing the Boundaries
As noted in part one, old-fashioned common sense can go a long way toward helping attorneys make sound decisions when drafting closing statements. But language is a complex thing, full of subtlety and nuance—and at trial, one slip can mean the difference between winning and losing. To help it achieve the impact it deserves, every fine-tuned closing statement should be tempered with an understanding of the boundaries that have been set by courts as to what is proper, and what is improper, to argue.
Keywords: litigation, minority trial lawyer, closing arguments, emotion, personalization, rhetoric