Picture yourself listening to opposing counsel. He is making a compelling pitch to the jury on behalf of a single father who was maimed in a collision with your company’s truck.

He reads the jurors an imagined “letter” from your company to the five children of the injured plaintiff, who happens to be an attorney.

Imagine him putting these fictitious words into your company’s mouth: “Our lawyers will expose every part of your dad’s professional and personal life in an attempt to make the jurors think poorly of him… While we’re at it, our lawyers will also try and discredit your dad’s lawyers.”

Your worst fears are realized when the jury comes back with a multimillion-dollar verdict. Finally, think of your relief when an appeals court wipes out that award because it found the other side’s imaginative jury address went too far.

That scenario, involving a dramatic closing argument in the form of an “imaginary letter,” culminated recently in a 10th Circuit judgment in Whittenburg v. Werner Enterprises Inc. that forcefully warns plaintiffs’ counsel against abusive verbal attacks on defendants and defense counsel in the presence of a jury.

The appeals court said it was “reluctant” to take the drastic step of reversing a $2.4 million jury verdict in favor of Mack Whittenburg, who was hurt when his pickup truck hit a tractor-trailer that had stalled across a darkened stretch of Oklahoma highway in 2003.

Commenting that it has a duty “to mark and guard the outer boundaries of acceptable trial conduct,” the 10th Circuit explained: “We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel.”

The court ruled April 3 that a new trial was mandatory in view of the “volume and volubility” of the improper remarks, the trial judge’s failure to rebuke the improper arguments despite immediate objections from the defense, and the “apparent influence” the remarks had on the jury’s verdict.

Flawed Finish

The content of the flawed closing address vividly illustrates what not to say to juries, says Michael Carr, who successfully argued the appeal for Werner Enterprises and its co-defendants.

“It was an extreme example of multiple tactics that plaintiffs’ attorneys use to attempt an impactful closing statement. I am sure the plaintiffs’ bar will not be thrilled with this opinion because it really hems in what they can do,” adds Carr, a partner at Holden, Carr & Skeens.

The 10th Circuit held that the plaintiff’s closing argument exceeded proper bounds by suggesting that the defendants, among other things, improperly took the case to trial and spent vast sums of money to avoid responsibility.

“This line of argument is especially concerning,” Judge Neil Gorsuch wrote. “Every individual and entity has the right to mount a non-frivolous defense against allegations of negligence or other misconduct. In preparing that defense, a party can–indeed, often must–spend not inconsiderable amounts of money on both representation and experts.”

The 10th Circuit noted that fully one quarter (14 paragraphs) of the imaginary letter was made up of “vituperative attacks on the defendants,” which had no basis in the evidence adduced at the trial.

Cautionary Tale

Used more judiciously, storytelling techniques can be powerful tools in a jury trial, says Mary Sue Backus, an associate law professor at Oklahoma University College of Law (see “Colorful Closings”).

“An imaginary letter, as a vehicle to highlight the evidence and the proper inferences that support your story, I think is very creative,” she says. “But this case is a cautionary tale about taking that too far. You can’t ask [jurors] to imagine beyond the framework of the admissible evidence.”

The 10th Circuit said it didn’t need to rule on the defense’s argument that using an imaginary letter in closing argument is per se improper.

“The content of this particular imagined letter included a great many facts … that lacked any basis in the evidence adduced at trial,” Gorsuch wrote. “Counsel’s argument accordingly violated the cardinal rule of closing argument: that counsel must confine comments to evidence in the record and to reasonable inferences from that evidence.”

The 10th Circuit also objected to the use of “invented facts” that were “plainly calculated” to arouse jury sympathy. The closing argument evoked images of the children receiving the news of their father’s accident and implicitly asked jurors to put themselves in the children’s shoes.

“In this case it was not the actual act of storytelling that was criticized by the court, but it was the content of the story,” says John S. Wilkerson, a partner at Turner Padget Graham & Laney in Charleston, S.C. Improper tactics “are not made less so when they are dressed up as a fictional story–they still violate the rules.”