Television dramas exaggerate trials to make them interesting to viewers. However, a walk through any courtroom today leaves one wondering which is the original stage. Trial lawyers increasingly rely on technology and the resulting need to outdo opposing counsel's cinematic effects at trial. Of course, this is not to say that drama in the courtroom is new, but the addition of visual and auditory effects increases the trial lawyer's zeal in a new way. And although most of us remember the Golden Rule that we learned in grade school, one has the impression that, in recent times, the other Golden Rule of closing arguments is observed by trial lawyers less often than in the past and with less severe consequences for its violation. Nonetheless, it is still the rule in most jurisdictions.
What is the Golden Rule?
The Golden Rule of closing arguments refers to the Biblical Golden Rule from Luke 6:31 and Matthew 7:12 commonly stated as: Do to others as you would have them do to you. See Edward J. McCaffery et. al., Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev. 134, 1, 1383 (1995). The rule prohibits the use of arguments that ask the jury to consider what they would wish to receive in damages if they were the claimant. Generally, "a golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Metro. Dade County v. Zapata, 601 So. 2d 239, 241 (Fla. Dist. Ct. App. 1992)
The prohibition against the Golden Rule argument is deep-rooted in the American legal system: "[I]t is expecting too much of a man to weigh his own case fairly and impartially, since most humans want their own cases to be decided in their favor. It follows, therefore, to advise jurors to decide a case as they would want it decided if they or their loved ones were the litigants is to establish a false standard for the basis of judgments." Danner v. Mid-State Paving Co., 252 Miss. 776, 783 (Miss. 1965). The reasoning is that jurors should make an objective evaluation according to the law and facts, and Golden Rule arguments pander towards jurors' sympathies and emotions. Even so, "the 'Golden Rule' argument is prohibited only where it is used to inflame the jury and encourage and increase a damages award." 75 A Am. Jur. 2d Trial § 547. The fear is that jurors will consider what they would want if they were the victim/plaintiff and inflate damages in a self-interested way. For these reasons, Golden Rule arguments are still considered prejudicial and are prohibited in most jurisdictions.
Breaking the Golden Rule
Impermissible Golden Rule arguments usually occur in bodily injury cases. The claimant's attorney, understandably, tries to stimulate the jurors' sympathies for the claimant throughout the course of the trial. However, an explicit argument that asks the jury to award damages in the way they would want if they were in the victim's shoes violates the Golden Rule and exposes the plaintiff's advocate to well-founded objections from the defense. Other generally impermissible Golden Rule arguments ask the jury to imagine one day of the pain the victim will have to endure for a lifetime, or whether they would want a family member to suffer in the same way.
"Golden rule" arguments are not exclusive to plaintiffs, and defendants can violate the rule, too. In Lovett ex rel. Lovett v. Union Pacific R. Co., 201 F. 3d 1074 (8th Cir. 2000), the plaintiff sued the railroad company for injuries sustained from a train and car collision. In closing arguments, the defense counsel asked the jury: "Now for a minute let's take a totally hypothetical situation. Let's say that I'm a passenger in a car being driven by a friend; [and] you're driving a car. . . . [M]y car—the one that I'm riding in— pulls out and hits you and I'm hurt. . . . [W]hat if this was the lawsuit, me against you and I'm hurt and you had the ability to pay?" Id at 1082. While the closing statement was hypothetical, the court found that "the parties were clearly identifiable as those in the case," and asking the jurors to place themselves in the position of the hypothetical defendant was an improper Golden Rule argument. Id.
Golden Rule violations can result in remedies ranging from curative instructions to a mistrial. Trial courts are given wide discretion and deference, because the proper curative measure for a Golden Rule argument depends upon "the nature of the case, the emphasis upon the improper measuring stick, the reference in relation to the entire argument, [and] the likely impact or effect upon the jury." Rodriguez v. Slattery, 54 Wis. 2d 165, 170 (1972); see also Edwards v. City of Philadelphia, 860 F.2d 568, 574 (3d Cir. 1988).The trial court is necessarily better situated to evaluate all of the factors and the statements in the context of the whole trial.
Objections and Appeals
If a Golden Rule argument is made, the opposing counsel must immediately object to the improper statements and move for a mistrial; otherwise, the objection is considered waived. In Brokopp v. Ford Motor Co., 71 Cal. App. 3d 841 (Cal. Ct. App. 1977), the court reasoned, "[a] party is foreclosed from complaining on appeal of misconduct during arguments to the jury where his counsel sat silently back during the arguments, allowed the alleged improprieties to accumulate without objection, and simply made a motion for a mistrial at the conclusion of the argument." Id at 860. Additionally, any objections will be considered cured and foreclosed on appeal, without including a timely motion for mistrial.
In State v. Maertz, No. 2006AP333-CR, 2006 WL 3783028, 727 N.W. 2d 374 (Wis. App. 2006), an objection was made immediately after a Golden Rule argument and the trial court sustained the objection. At the conclusion of the argument, the objecting counsel moved for mistrial. The trial court held that the claim of error was waived, because the motion for mistrial was not "contemporaneous" with the objection. The appellate court affirmed, "[t]he failure to timely move for a mistrial failed to signal that the argument was deemed troublesome enough to support a mistrial and foreclosed the trial court from giving a corrective instruction to address the alleged error." Id at *3. Although this contemporaneous requirement has not been addressed in all jurisdictions, it is advisable to move for a mistrial immediately after an objection in order to avoid any unintended preclusions.
The case of Schreidell v. Shoter, 500 So. 2d 228, 233 (Fla. Dist. Ct. App. 1986), exemplifies the consequences for failing to press for an adverse ruling. During closing argument, after a prejudicial Golden Rule argument was made, the defense counsel immediately raised an objection and moved for mistrial. The trial judge did not respond to the request or give any curative instructions to the jury. The appellate court found, "[f]ailure to secure a ruling on an objection waives it, unless the court deliberately and patently refuses to so rule." Id at 233.The court also affirmed that impermissible closing arguments, which are not preserved for appeal, may only be reviewed by the appellate court for fundamental error. Therefore, in order to preserve a Golden Rule issue for appeal, an attorney must timely object and move for mistrial and also secure a curative instruction or adverse ruling from the trial judge.
Arguments which ask the jury to consider the facts as a reasonable person would or should do not violate the "golden rule." In Cummins Alabama Inc. v. Allbritten, 548 So. 2d 258 (Fla. App. 1st 1989), the defense attorney asked the jury "to judge [the defendant] in light of what you would have done as reasonable people, in the circumstances they were in, given their job and their role." Id at 263. The trial court ordered a new trial in light of the prejudicial arguments. However, the appellate court reversed finding an abuse of judicial discretion. The appellate court found that the argument was permissible, because the "request was couched in terms of the jurors' acting 'as reasonable people' ", and the reasonable person standard was a proper consideration for determining negligence. Id.
In most jurisdictions, the Golden Rule prohibition applies to arguments relating to damages and does not apply to arguments relating to liability. In Shaffer v. Ward, 510 So. 2d 602, 603 (Fla. Dist. Ct. App. 1987), the defense counsel asked the jury to imagine themselves driving and said, "I think everyone has had a close call because of what happened in front of them. And it wasn't a close call because you were negligent or not paying attention." Id at 603. The court found that this was not an improper Golden Rule argument targeting the "sensitive area of financial responsibility." Instead, the statements attempted to have the jurors use their common, daily life experiences only in deciding the question of liability, not damages. Id; see also Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67, 105 (2001).
Similarly, in Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d 457 (S.D.N.Y. 2003), the court found that the plaintiff's closing argument did not violate the "golden rule." Here, the defense objected to the closing argument stating: "Can you imagine if you broke your wrist like this and had to have it put back together with plates and screws, what that must have been like? Don't you think that may have produced some pain, too?" Although quite similar to a Golden Rule argument, the court found there was no violation, because the statements simply "invited the jury to focus on the gravity of the plaintiff's injuries, but did not tell the jurors directly or implicitly that they should award plaintiff the sum of damages that they themselves would desire if they found themselves 'in the plaintiff's shoes.' " Id at 465. Although arguments in these cases were intended to induce the jurors to self reflect, they did not violate the Golden Rule, because they were not followed by direct appeals for damages.
The Decline of the Golden Rule
An objection during closing argument already is fraught with some risk, because it can appear overly antagonistic to the opponent and interruptive to the jurors. With the rise in cognitive and behavioral research on jury decision making, the historical importance placed on closing arguments may have diminished, because most research suggests many jurors have already made up their minds before closing arguments. See Mccaffery, supra, at 1384. As a result, counsel must choose whether the argument is worthy of an objection.
Although, the Golden Rule is no longer the subject of frequent interest, it is important to remember that it is not dead, and the resort to it in argument during a trial is still reversible error, in most jurisdictions. Moreover, your adversary may have fewer inhibitions than you about making objections during closing argument. One way to avoid making impermissible Golden Rule arguments is to take extra caution when discussing damages in closing arguments. This is because Golden Rule arguments are more problematic and likely to be reversible error when they appear to inflate a damages award. Otherwise, Golden Rule arguments are not likely to be considered sufficiently prejudicial and a curative instruction will most likely be an adequate remedy.
It is the advocate's role to present her client's case in a way that induces jurors to identify with and sympathize with her client. See, Herbert J. Stern, Trying Cases to Win: Summation, 413-16 (Wiley Law Publications, 1995). But, blatant arguments directly appealing to the jurors' self-interest in awarding damages, generally, are prohibited. Usually, one can evoke sympathy for one's client and avoid drawing a Golden Rule objection by reminding the jurors of all of the evidence that they have seen and heard regarding the client's injury and then, by directly asking the jury to fairly and fully compensate the client for the pain, loss, or injury that they have seen and heard described.
Keywords: litigation, trial practice, closing arguments, juries
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