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February 21, 2019 Articles

Closing Arguments: Common Pitfalls and Pointers

Ignorance of what constitutes improper conduct during closing can have a severe detrimental impact on a client’s case

By Lauren Reynolds and Bryan Gottfredson

Closing argument is the culmination of not only an exhaustive trial but also an entire underlying litigation process that may have been years in the making. It is incumbent on a lawyer to deliver an interesting, persuasive argument that engages the jury, summarizing the points of the case and rebutting the opponent’s argument. Despite the belief of many lawyers that there are no restrictions on closing arguments and that their closing argument is in some way shielded from objections by opposing counsel, there are a number of ethical and legal bases on which a closing argument may result in negative consequences for both lawyer and client that must be taken into account prior to the culmination of the case. Before delivering an impactful and persuasive closing argument, or objecting to an opponent’s closing argument, a lawyer should take care to appreciate, understand, and avoid the following potential ethical and evidentiary hazards that await the unwary.

The Model Rules of Professional Conduct

Lawyers are subject to certain ethical standards, which can vary by jurisdiction. Most jurisdictions in the United States have adopted or modeled their own ethical standards based on the American Bar Association’s Model Rules of Professional Conduct, which set out various overarching principles that every lawyer should be mindful of in all stages of trial practice, including in the approach to closing argument.

For instance, although the Model Rules of Professional Conduct refer to a lawyer’s ethical “obligation to zealously [] protect and pursue a client’s legitimate interests,” that obligation is subject to certain ethical limitations. The zealous representation of one’s client must be performed “within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” There is nothing about a closing argument that halts this directive.

Moreover, pursuant to Model Rule 3.4(e), a lawyer shall not

in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state 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.

Notably, although the Model Rules of Professional Conduct provide these very specific guidelines, they do not limit the scope of ethical standards to which a lawyer may be held. Rather, the Model Rules assert that they “do not . . . exhaust the moral and ethical considerations that should inform a lawyer.”

Depending on the jurisdiction, violation of these ethical standards, or their counterparts, can result in serious consequences for lawyers and discipline by state bar associations or other ethical disciplinary bodies.

Gauging What Is Proper

In addition to consequences to the lawyer arising out of ethical standards, ignorance of what constitutes improper conduct during closing argument can have a severe detrimental impact on a client’s case.

As a general matter, trial courts have broad discretion in controlling closing arguments, and many courts allow lawyers wide latitude in presenting closing argument. There is, however, conduct that courts have found to exceed what is permissible in the context of presenting a closing argument, a few examples of which are further explored below. Not surprisingly, the conduct courts have found to be offensive correlates to conduct considered unethical by recognized standards.

  • Departing from the record. “[C]losing arguments are limited to the facts in evidence and the reasonable inferences [that can be derived] therefrom.” Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 365 (7th Cir. 1992). In considering improper conduct during closing arguments, courts “have found it particularly important whether or not statements made in closing argument were based on evidence in the record.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 778 (5th Cir. 2009). In fact, departing from the record and using a closing argument to bring facts before the jury that are not in evidence and never established during the trial is considered to be a “particularly indefensible tactic” that can result in an order for a new trial. Id.

    Misconduct under this category may include statements by a lawyer regarding any evidence not admitted during the parties’ case-in-chief, evidence that was previously excluded by the trial court, nonexistent evidence, or conjectures regarding hypothetical testimony from a witness not called at trial.
  • Drawing unreasonable inferences. Similarly, lawyers are not permitted to draw unreasonable inferences during their closing arguments. In making closing arguments, counsel are provided wide latitude “that embraces reasonable inferences from the evidence presented at trial.” United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). Courts have surmised that the purpose of closing arguments is to force jurors to draw plausible inferences from the evidence so they can form their own conclusions. However, it is improper for a lawyer to present the jury with inferences that are not supported by the evidence that has been presented during trial. Such inferences include inflammatory and prejudicial statements and generalizations lacking evidentiary basis.
  •  “Vouching” and interjecting personal beliefs. The Supreme Court has held that lawyers are to “refrain from interjecting personal beliefs into the presentation of [their] case[s].” United States v. Young, 470 U.S. 1, 8–9 (1985). Courts have found it inappropriate for a lawyer, during closing argument, to vouch for a witness’s credibility, based on evidence outside the record. In other words, a lawyer is not permitted to bolster a witness’s credibility with the lawyer’s own personal opinion or with information or evidence not presented to the jury during trial. Similarly, a lawyer is not permitted to express his or her “beliefs regarding the honesty of the opposing party’s witness” or his or her “belief regarding opposing counsel’s opinions of honesty.” Spicer v. Rossetti, 150 F.3d 642, 644 (7th Cir. 1998). In short, there are practical and legal reasons for a lawyer to leave his or her own opinion of a witness’s credibility out of a closing argument.
  • Appealing to prejudice based on wealth or financial status. Courts have held that “justice is not dependent upon the wealth or poverty of the parties and a jury should not be urged to predicate its verdict on a prejudice against bigness or wealth.” Draper v. Airco, Inc., 580 F.2d 91, 95 (3d Cir. 1978). For that reason, a lawyer is not permitted to discuss a party’s financial status or contrast opposing parties’ financial statuses during closing argument, absent special and limited circumstances. As with the credibility of a witness, counsel should trust that if members of a jury care about such a subject, they will ferret this out on their own and come to their own conclusion.
  • Expressing unsupported criticisms of opposing counsel. Courts have also found it inappropriate for a lawyer to engage in abuse of opposing counsel during closing argument. Although “considerable latitude is allowed counsel in argument before the jury in criticizing opposing counsel, nevertheless counsel must keep within the evidence and may not employ language not justified by the record, or resort to uncalled for personal abuse.” Mo.-Kan.-Tex. R.R. Co. of Tex. v. Ridgway, 191 F.2d 363, 369–70 (8th Cir. 1951). Such language and abuse includes unsupported allegations regarding an opposing counsel’s handling of evidence or alleged suppression of facts and may result in the granting of a new trial where not appropriately addressed by the trial court.

Preservation of the Issue and Standards for Review (or When to Object!)

A timely objection to misconduct during closing argument is required to appropriately preserve an objection for appeal. An objection is timely if it was made “contemporaneous” to the objectionable statement or comments during the closing argument. An objection can be considered appropriately “contemporaneous,” even if not made during opposing counsel’s closing argument, and this timing is something that the trial lawyer must weigh in advance of an opponent’s closing. For example, courts have found that “a nearly contemporaneous objection made at the bench at the close of an opponent’s argument, clearly stating the grounds for the objection, would preserve the matter for appellate review.” Deppe v. Tripp, 863 F.2d 1356, 1363 n.10 (7th Cir. 1988). Such flexibility allows for a lawyer to strategically select when such an objection should be made and whether it should be made in front of the jury. Another reasonable approach that may be appealing to both the court and the jury is to have a conference with the judge and opposing counsel prior to closing and develop a silent form of objection, such as raising your hand to indicate either that an objection is made or that it will be made at the end of the closing argument. There can be a multitude of benefits to this approach, including not being overruled in front of the jury and not ruining the flow of the trial—something that can potentially frustrate jurors to no end.

On appeal, appellate courts typically review the trial court’s record only for plain or fundamental error, which requires “(1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice.” Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 517 (9th Cir. 2004). Therefore, even in the absence of a timely objection on the record at the trial court, in cases in which misconduct during a closing argument is egregious and demonstrates plain or fundamental error, such misconduct could still result in negative consequences for the offending party. Just because your adversary did not object during or at the conclusion of a closing does not mean you are out of the woods.

In Summary, Know Your Ethical and Evidentiary Standards

There are numerous examples of potential ethical and evidentiary misconduct to be aware of in closing argument, including many this article has not touched on. Despite numerous opinions containing trial court warnings and appellate reversals, misconduct during closing arguments continues to occur and lawyers continue to be hesitant in objecting to such misconduct, likely because they are not as familiar with the dos and don’ts. In the new era of decreasing trial experience for young and senior lawyers alike, educating oneself on what constitutes misconduct in the context of closing argument remains important in order to avoid inadvertently partaking in such conduct or waiving an otherwise appropriate objection.

Lauren Reynolds and Bryan Gottfredson are lawyers at Sacks Tierney, P.A., in Scottsdale, Arizona.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).