Tissue-Boxes, Prostitution Accusations, and Personal Attacks

Zealous advocacy is part of all litigation. However, when does zealous advocacy cross the line into improper comments that may be the basis for a new trial? In Clapper v. American Realty Investors, Inc., the defendants’ counsel’s closing argument included throwing a box of tissues at his adversary, characterizing the plaintiff’s expert as a prostitute, and repeatedly impugning the plaintiff’s and its counsel’s professional ethics. The U.S. Court of Appeals for the Fifth Circuit found that the attorney’s conduct was so objectionable that the plaintiff was entitled to a new trial.

Personal Attacks in Closing Argument

The plaintiff sued American Realty Investors, Inc., and other entities, claiming that they had transferred assets to avoid paying a judgment from a previous lawsuit in violation of the Texas Uniform Fraudulent Transfers Act (TUFTA). The jury rendered a verdict in favor of the defendants, and the plaintiff appealed, contending that the defendants’ counsel made numerous improper and highly prejudicial statements in his closing argument.

The Fifth Circuit concluded that the defendants’ counsel had employed nearly every category of improper conduct in his closing argument, including personal attacks against the plaintiff’s counsel, like throwing a box of tissues at him, and stating “I know y’all have a potentiality of crying, y’all might need Kleenex during my” closing. The defendants’ counsel also claimed that the plaintiff’s counsel had attempted to hide evidence, was low class, treated everyone with disrespect, and implied that the plaintiff had paid a witness for specific testimony, referring to one of the plaintiff’s expert witnesses as a “paid prostitute from Michigan.”

After examining these statements and accusations, the Fifth Circuit found that the defendants’ counsel’s remarks, when considered collectively, extended far beyond permissible expression or hyperbolic language. The court determined that those statements were instead designed to improperly bias the jury against the plaintiff and his counsel.

Objectionable Conduct Can Warrant New Trial

The Fifth Circuit explained that expressive language and oratory or hyperbole in arguments do not require a new trial, but those techniques have their ethical limits. If a closing argument crosses the line to impermissible prejudice, a new trial may be appropriate. Statements must be examined collectively and in the specific context of the trial at issue to determine the propriety of the closing argument, the court noted.

If the tactics used by counsel impact the fairness and evenhandedness of the trial, then a new trial may be warranted. Examples of such conduct include “unsupported [and] irresponsible attacks on the integrity of opposing counsel,” arguing that established material facts are “false or without basis in the record,” appeals to local bias, and counsel’s personal opinions.

A Cautionary Ethical Tale

ABA Litigation Section leaders believe that this decision provides a cautionary tale for trial lawyers on what is permissible in closing arguments and how to respond to improperly prejudicial arguments. “Statements that are challenged as improper are not considered in isolation. Rather, the circumstances under which closing arguments are made must be considered on a case-by-case basis in order to determine if the argument, taken as a whole, warrants a new trial,” states Jeanne M. Huey, Dallas, TX, Co-Chair of the  Litigation Section’s Ethics & Professionalism Committee.

“Taken alone, any statement made in closing that is intended to convince the jury to ignore the evidence and base their opinion on emotion, bias, and/or conjecture is improper,” adds Huey. “Only the court has the power to correct this kind of conduct and should be asked to do so when it occurs. Because of this, lawyers who may be on the receiving end of such conduct should be prepared and have a plan to either respond or object, depending on which is appropriate,” Huey notes. “Sticking to the fundamental rules of closing argument will ensure that no line is crossed, and will rarely, if ever, create a risk of getting ‘too personal,”’ she explains.

Even though the attorney’s conduct is Clapper is not typical, it is a reminder to all practitioners to know their ethical boundaries in trial advocacy. “The attorney’s actions in this case are rare and likely involve a small percentage of the bar. Nevertheless, this is an important decision to read for attorneys to familiarize themselves with the model rules and things to avoid,” adds Thomas J. Donlon, Stamford, CT, Co-Chair of the Section’s Appellate Practice Committee.