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Closing arguments are an attorney’s last chance to weave together the client’s side of the story and cast the evidence in the most favorable light. Rarely do judges interfere, and even more rarely do appellate courts second-guess a trial court’s decision to give the lawyer free rein. But that will be put to the test today when the California Supreme Court takes up a case that some say could usurp trial judges’ authority in running their courtrooms. Two years ago, a divided 2nd District Court of Appeal panel said a trial judge impermissibly allowed a closing argument that the justices felt encouraged jurors to approve fraud. Naturally, the decision alarmed attorneys who rely on the visceral power of closing arguments to win cases. In an amicus curiae brief, the Consumer Attorneys of California said the high court could set a “dangerous precedent” if it upholds the lower court. Writing for the group, San Francisco lawyer E. Gerard Mannion said that would result in “a striking limitation on the formerly broad scope afforded for analogy, comparison, appeal to common experience and persuasion in argument of counsel.” “For good reason,” he added, “determination of the real sense of an argument, and of any prejudicial effect, has been left to the sound judgment of trial judges except in case of plain error.” The controversial closing argument took place at a 1999 trial in which Fareed and Rashida Cassim had accused Allstate Insurance Co. of acting in bad faith by not reimbursing them for furniture and clothing lost in a 1990 fire at their Palmdale home. Allstate had balked, based on suspicions that the Cassims had set the fire themselves, and then intentionally misrepresented reimbursable expenses while living outside the home afterward. L.A. County Superior Court Judge Harold Cherness contributed to the mess during trial by allowing jurors to show up on days when there were no proceedings, having them sign in and then telling them they were free to go — but didn’t have to return to work. As a result, some were paid for their regular job and for jury duty. Santa Monica lawyer Ian Herzog used the judge’s actions during closings to tackle the issue of intentional misrepresentation. The Cassims, by responding as best they could to Allstate’s requests for receipts and other documentation, he argued, were acting no more fraudulently than the jurors had by following Cherness’ directions on deceiving their employers. In a 2-1 ruling, the appeal court said both Herzog and Cherness had gone too far. “In essence,” L.A. County Superior Court Judge Aurelio Munoz, sitting by assignment, wrote, “[Herzog] argued that everyone, including the jurors, cheats a little and that the trial court’s procedures regarding the jurors indicated the court agreed with such conduct.” Cherness exacerbated the problem, he said, by giving his “stamp of judicial approval.” In dissent, Justice Earl Johnson Jr. argued that Herzog’s statements fell within the range of proper argument and that the appeal court should not have substituted its judgment about what was proper over that of a trial judge who heard six weeks of testimony. In court briefs, Herzog contends that the appeal court majority placed “its own gloss on ambivalent argument.” The thrust of his closing statements, he writes, was that neither the jurors nor the Cassims had lied, “but acted honestly in reliance on instructions from a knowledgeable authority.” “The point of the argument,” he continued, “was an analogy about reasonableness and good faith reflecting on the plaintiffs’ state of mind, not the judge’s state of mind.” Allstate, however, argued in briefs that Herzog’s argument clearly told jurors that an occasional misrepresentation is nothing to worry about. “But for the trial court’s authorization to the jurors to lie to their employer, coupled with the Cassims’ counsel’s admonition that they could not find against the Cassims without also condemning their own conduct, it is reasonably probable the jury would have found for Allstate,” wrote Peter Abrahams, a partner at Encino’s Horvitz & Levy, who represents Allstate. Abrahams and Herzog differ about the importance of the Supreme Court’s ultimate decision. Herzog says the Consumer Attorneys got it right, that an affirmation of the appeal court ruling could have wide impact. “What it means,” he said, “is that now trial judges are going to have to heavily monitor vigorous advocacy and put a damper on it for fear someone will go a millimeter too far.” Abrahams, meanwhile, contends that the case contains “a very unique set of circumstances” and should result in a narrow holding. The bigger issue, he maintains, involves attorney fees. While the high court has focused arguments on the standard of review afforded appellate courts, most of the amici curiae — almost all of them insurers — seem far more interested in a secondary issue regarding fees. The question they want resolved is whether people suing insurers for bad faith are limited to recovering fees equal to 40 percent of the policy benefits denied, or if they can recover 40 percent of all damages. In this case, in which the appeal court ruled that fees were not limited to the policy benefits, the financial hit for the insurer could be huge. Jurors awarded the plaintiffs more than $9.8 million in damages, whereas the disputed policy benefits amounted to only about $44,000. “Whatever the court says will set a precedent,” said Abrahams. The fee issue hinges on the Supreme Court’s interpretation of its own 1985 ruling in Brandt v. Superior Court, 37 Cal.3d 813, which held that plaintiffs in bad faith actions should be entitled to attorneys fees “reasonably incurred” in recovering the rejected benefits. The appeal court held that an insurer is liable for the entire judgment if it “unreasonably refuses’ to settle a dispute. “If the insurer’s tortious conduct reasonably requires the insured to retain an attorney to obtain the benefits under a policy,” the court wrote, “it follows that the insurer should be liable in a tort action for that expense.” If that holding stands, Allstate would be on the hook for more than $1.1 million in fees, instead of the approximately $17,000 it says are due. The case, Cassim v. Allstate Insurance Co., S109711, will be argued in San Francisco.

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