November 30, 2012 Top Story

Georgia Judges Must Cure Harm of Improper Arguments

Objecting party need not request remediation; courts' curative responsibility is mandatory

Oran F. Whiting

Contrary to other jurisdictions, it is now clear Georgia judges have the burden of remedying any harm inflicted by improper arguments in civil trials if the court sustained timely objections to those arguments during trial, according to the Supreme Court of Georgia. In Stolte v. Fagan [PDF], a case of first impression, the Georgia Supreme Court ruled that the trial courts’ curative responsibilities apply even if the objecting party never requests remedial measures.

Facts Underlying Stolte

In Stolte, plaintiffs Kerry Stolte and her husband filed a medical malpractice action against defendants Dr. James Fagan III and his dental practice, alleging Dr. Fagan negligently severed Stolte’s lingual nerve during a wisdom tooth extraction.

During closing argument, Fagan’s attorney highlighted Fagan’s excellent reputation as a reason for the jury to return a defense verdict. The trial court sustained Stolte’s counsel’s immediate, timely objection to this statement. Stolte’s counsel waited until approximately 90 seconds after the conclusion of defense counsel’s closing argument to object to additional improper statements made during the closing. Counsel also waited until after a recess to note defense counsel’s disregard of the court’s earlier admonition and to request a curative instruction.

The trial court refused counsel’s request for an immediate instruction, and instead addressed the issue during its general charge to the jury by inserting a reference to reputation into the standard sympathy charge it had previously agreed to give. The jury returned a defense verdict. Stolte appealed after her motion for new trial was denied, claiming the trial court failed to fulfill its duty under O.C.G.A § 9-10-185 to prevent defense counsel’s prejudicial statements.

O.C.G.A. § 9-10-185 reads, in pertinent part


Court of Appeals Affirms

The court of appeals unanimously affirmed the lower court’s ruling. The appellate court held Stolte waived her objection to one instance of the allegedly improper closing argument because she did not contemporaneously object (during the closing argument) and did not request an immediate curative instruction.

Georgia Supreme Court Reverses and Remands

The Court reversed and remanded the case. It found that the trial court and court of appeals incorrectly imposed a higher duty on an objecting attorney than is required by statute.

The Georgia Supreme Court equated O.C.G.A. § 9-10-185 to a similarly worded criminal statute, cited the plain language of the statute, and held that, in civil cases as well as in criminal cases, when an objection to improper argument has been sustained, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety, even absent a specific request for such a measure. When the trial court sustained Stolte’s objection, the court assumed an independent duty to take some remedial action without any additional request from Stolte’s counsel.

Even so, the court agreed with the court of appeals that Stolte’s counsel waived her objection to defense counsel’s remarks concerning the dentist’s reputation by failing to object contemporaneously. It found a party must object at the time the offending remarks are made rather than at the conclusion of the argument. The court remanded the case so that the lower court could determine whether the remarks concerning reputation in reasonable probability changed the result of the trial.

“This is an interesting statute in that it places the affirmative duty on the judge,” according to Nash A. Long, Charlotte, cochair of the ABA Section of Litigation’s Trial Practice Committee. “I am not aware of all jurisdictions, but in mine, you don’t get it if you don’t ask for it,” according to Long. “Since the rule creates more work for the judge, it is only fair to wonder if, in a close call, a judge would simply overrule an objection to reduce his burden.”

Regardless of this rule, this case illustrates the benefit of “both object[ing] on a timely basis and specifically request[ing] the curative relief sought in response to an improper argument,” according to Teresa M. House, New York, also cochair of the Section of Litigation’s Trial Practice Committee. “You do not want to leave it to the judge to fix your problems; you must take control at the time of the infraction and not just wait to address it on appeal. The cat is already out of the bag on appeal and you have already significantly lessened the opportunity for corrective measures,” opines House.

Oran F. Whiting is an associate editor for Litigation News.

Keywords: closing arguments, trial practice, curative instructions

Related Resources

  • Stolte v. Fagan, No. S11G1871 (Ga. Sept. 10, 2012).
  • O.C.G.A. § 9-10-185.

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