Don't Close by Plucking Defeat From the Jaws of Victory

Don't Close by Plucking Defeat From the Jaws of Victory Adobe Illustrator(R) 12

Now for a story about how a plaintiffs lawyer plucked defeat from the jaws of victory. The U.S. Court of Appeals for the Eighth Circuit sets out the facts in its April 4 decision in Gilster v. Primebank. The opinion lays it out: It was a hard-fought sexual harassment/retaliation case with some egregious allegations. After a six-day jury trial, the plaintiff’s verdict was $40,000 for past emotional distress, $200,000 for future emotional distress and a whopping $600,000 in punitive damages.

But the plaintiff’s lawyer forgot two things: First, in closing argument, a lawyer cannot make herself a witness. Second, a jury pretty much has made up its mind by closing. (The idea that jury deliberation is what leads to a verdict is pretty much fiction.)

Here’s some of what she didn’t need to tell the jury: Her client “had the strength to make that complaint. … I sure didn’t. Back in 2006 I was sexually harassed by a [law] professor. … I was a third-year law student.”

The defense objected, the court overruled the objection and the lawyer continued.

“And I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor. Given my calling as a civil rights lawyer, I am constantly amazed by the strength and courage that my clients have,” she said.

There is more, but you get the idea. The lawyer made these remarks, as the court noted, as a strategic decision, inserting them in her rebuttal. But the comments were prejudicial because they were not drawn from the record, were emotionally charged and were not minor aberrations made in passing. They formed the crux of her rebuttal.

Here is the court, quoting from an earlier opinion on the subject of improper argument: “When a lawyer departs from the path of legitimate argument, [s]he does so at [her] own peril and that of [her] client.”

Thus, the Eighth Circuit reversed the trial court’s denial of a new trial. The plaintiff’s lawyer should have let the justice of her case speak for itself.

I leave the final word to Shakespeare in “King John”: “To gild refined gold, to paint the lily, / To throw a perfume on the violet / … Is wasteful and ridiculous excess.”

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