Michael Hoenig ()
On Dec. 28, 2016, the New York Appellate Division, Second Department, issued its pithy, pungent decision in People v. Brisco,1 reversing a criminal conviction for improprieties during the prosecutor’s summation. The opinion bristles against the cumulative effect of inflammatory comments such as: directly attacking defense counsel’s role and his integrity; raising a hypothetical that bore no relation to the evidence in the case and then suggesting what defense counsel would have argued with respect to that irrelevant hypothetical; improperly referencing facts not in evidence in order to call for speculation by the jury; misstating critical testimony by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed; improperly appealing to the jury’s sympathy and generalized fear of crime by asserting defendant possessed a loaded gun and, because police officers in the area “did their jobs,” fortunately, nothing happened; and advising the jury, “now it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty (a so-called “safe streets” argument considered inflammatory and disapproved by the courts); plus other remarks.
That courts exercise heightened vigilance in criminal cases when prosecutorial arguments cross the lines of prejudice should not be surprising. In criminal cases the stakes are incarceration and a hounding stigma beyond the jail term. Prosecutors are held to a high standard, for the jury may give special weight to their arguments. Also, as the U.S. Supreme Court said in Berger v. United States,2 the U.S. attorney is “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Thus, “while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones.”3
The strong court response in the People v. Brisco criminal case had me wondering whether courts generally tend to exercise the same degree of vigilance and firepower in civil trials.4 That, in turn, motivated my renewed review of literature and illustrative case law regarding improper argument. It seems that, while ample lip service is paid by courts to established high-road principles, each case, so to speak, sits on its own bottom and outcomes are not predictable with certainty. It may be best to again sensitize readers to pitfalls and tensions in this area. Some resources by writers providing guidance are cited in the endnotes.5
Challenging problems confront civil trial judges in how to police misconduct consisting of counsel’s improper argument, intentional “slips” of the tongue regarding inappropriate subjects or injection of prejudicial matter into the case. The judge’s dilemma is often tinged by practical realities inhering in the process. Trial advocacy, after all, involves different attorney styles—some of them quite aggressive. Rhetoric plainly is the lifeblood of the communicative art. Persuasion is the advocate’s clear goal. Winning the hearts and minds of the jurors is the name of the game.
Policing advocative misconduct, therefore, is made difficult by the very nature of the trial process which is adversarial, disputative and contentious. Since the war is fought largely on rhetorical terrain and major weapons inevitably include words, tone, facial expressions, body language, verbal projection of ideas, imagery and arousal of juror emotions, the judge’s task is concededly onerous. The court strives to let the lawyers’ innate skills and intellect play themselves out—an objective naturally inconsistent with acting as a muzzle. Yet, the judge also must guard against unfairness and prejudice creeping into the proceedings.
Sometimes this is a delicate balancing act. There are few clear rules on when and how to police effectively against loose lips at all times. And, when serious infractions do occur, judges are reluctant to declare mistrials, thereby expunging efforts already expended in the trial. Likewise, some judges are loath to penalize the litigant for the misconduct of his counsel. Conventional wisdom often suggests, therefore, that judges merely give some sort of “curative” instruction to the jury to disregard the offensive remarks. But do such so-called “curative” instructions really do the job? Or do they call more attention to the indiscretion? And, if mere “slap-on-the-wrist,” curative instructions are to be the dominant measure of judicial response, are not wrongdoers actually enticed into engaging in prejudicial misbehavior? If the “cure” is ineffective and inflammatory arguments help errant counsel win the case, is wrongdoing sufficiently deterred? Are the courts sending the right signal to adventurous counsel who may be willing to cross lines of decency and propriety?
The problem is perhaps more aggravated for appellate judges. They must labor upon a “cold” record in which the black-and-white transcript frequently does not convey the odium that unfolded in flesh-and-blood terms before the jury. Thus, some appellate courts may tend to be extremely deferential to the trial court’s “discretion” in the matter.6 After all, the trial judge had a first-hand view of the prejudicial impact upon the jury and, if he or she excused the misdeed or gave a “curative” admonition to disregard, some will reason, that must mean that the prejudice either was not fatal or was “cured.” Appellate judges also are subject to the natural inertia against wasting judicial resources by ordering another trial.
Thus, time and again, in “improper argument” cases we see appellate courts bristling against the clearly abusive remarks but nevertheless condoning the result below under time-worn slogans such as: Litigants are entitled to a “fair” trial—not a “perfect” trial; or that the failure to police the improper remarks amounted to “harmless error”; or that offending counsel should not have engaged in such “emotional” or “colorful advocacy” but that the length and complexity of the proceedings justify the refusal to grant a new trial; or that jury instructions amply advised the jurors that “counsel’s argument is not evidence.” Unfortunately, these rationalizations—expedient as they may be—do not yield wholly satisfactory results.
An opinion by the Sixth Circuit suggests that a more vigorous judicial response may be required against advocative misconduct and improper argument. The case is Igo v. Coachmen Industries,7 a product claim arising from a motor home accident in which plaintiff’s steering wheel came off in his hands while the vehicle was proceeding on a highway. The driver was able to bring the vehicle to a stop but, years later, sued for damage to the motor home plus mental and emotional injuries due to a post-traumatic stress disorder. The defendant admitted liability. The case was tried to a jury which returned a $325,000 verdict including mental and emotional injuries sustained by plaintiff and his wife.
On appeal, defendant complained about improper remarks made in the attorney’s opening statement, summation and via cross-examination about a recall campaign the defendant had conducted. Since defendant admitted liability, the trial judge had granted its motion in limine to exclude any evidence pertaining to the recall. The appellate court was immediately and remarkably struck by the prejudicial character of the advocative misconduct.8
Finding that the misconduct was “pervasive” and “outrageous,” the Sixth Circuit ordered a reversal.9 The appellate panel even directed the clerk of the court to send a copy of the court’s opinion to the state bar association’s disciplinary body for an investigation into possible violations of the Code of Professional Responsibility.10 What happened at trial to trigger such a vigorous and pointed response?
First, the court examined counsel’s indiscretion in referring to the excluded recall campaign before the jury. During appellate oral argument, plaintiff’s attorney assured the court that information regarding the recall had “simply slipped out in cross-examination.”11 The court, however, was not satisfied with this representation. It found that the reference to the recall was “direct and deliberate.” The panel believed the recall information had been “deliberately injected” into the cross-examination because previously, during the direct examination of plaintiff, counsel attempted to ask about the recall but was cut off by defendant’s objection.12 Then, when defendant’s employee was on the stand, plaintiff’s attorney asked directly: “Q. Are you aware, sir, that a Government made a recall notice [sic].” Defense counsel objected but the information was before the jury.13
Next, the appellate court discussed counsel’s references to the relative wealth of the defendant. Twice in closing argument, he referred to defendant as a “billion-dollar corporation.” The attorney stated on one occasion: “The opposition is interested in money. They are going to save that money. But they are not going to save that money, folks, if you have anything to say about it. Mr. Igo and his wife and the other passengers lived, and Mr. and Mrs. Igo and Tony LaRiche lived, and they took the stand against the billion-dollar defendants, and, ladies and gentlemen of the jury, they are not quitting.”14 Subsequently, counsel stated: “But we do have a chance against a billion-dollar corporation and we do have our day in court.”15
Then, the appellate panel focused on the “wild, unsubstantiated attacks” made against the defendant. In his opening statement, the attorney said: “Coachmen made us fight for five years and 11 months until we got into this courtroom.”16 The fact was, however, that plaintiffs themselves delayed for two years before filing suit and plaintiff’s attorney, not defendant, was sanctioned for dilatory conduct.17 Also deemed “troublesome” were remarks made in summation that the defendant had hoped that plaintiffs would not survive long enough to go to trial18 and that defendant was only sorry that plaintiffs had survived the accident.19
Considered “worse yet” were statements the attorney made in closing that plaintiff’s actions in bringing the vehicle under control on the highway had saved defendant the cost of six wrongful death actions.20 Finally, in what the court labeled an “open invitation to abandon impartiality,” plaintiff’s counsel asked the jury: “[H]ow much would you pay not to go through this experience and trial?”21
Lamenting the “extreme misbehavior” of errant counsel, the court observed that the defense attorney “did nothing to object to most of” the offensive statements. When asked about this during oral argument, defendant’s attorney said “she felt that persistent objections might put her in a bad light before the jury.” It was “clear” to the appeals court, however, that defense counsel “had an absolute obligation to object, and erred in not doing so.”22 Nor was the trial judge blameless despite the defense attorney’s inaction. “[T]he district court erred in not controlling Plaintiff’s counsel’s outrageous behavior. A trial court cannot sit quietly while counsel inflames the passions of the jury with improper conduct, even if opposing counsel does not object. The trial court should have censured and stopped this conduct.”23
Although reversal of the judgment was necessary, the appellate court went a dramatic step further. It could not “let pass what appears to be unprofessional conduct” by plaintiff’s attorney. Reflecting upon its obligations under Canon 3(B)(3) of the Code of Judicial Conduct for U.S. Judges,24 the court observed that counsel’s misbehavior merited investigation by the Ohio Bar Association. It quoted a number of the professional code provisions that may have been violated.25 Therefore, the court directed the court’s clerk “to send a copy of this opinion to the proper disciplinary authority … .”26
Some may dismiss this case as an overly egregious anomaly. Concededly, the cumulative impact of the many infractions seems highly prejudicial. But many trials do involve some, if not many, aspects of these kinds of indiscretions. Who is to say which item of prejudice strikes home the greatest?
To some extent aggressive counsel bent upon rhetorical swashbuckling will take their cues from the “signals” they get about “what goes” in the courtroom. If the “message” received is that advocative improprieties are off limits and the arena of conflict is not a verbal jungle, then even aggressive lawyers will stay within explicit or implicit bounds of advocative decency. Some judges openly prefer to preside over a so-called “tight” courtroom while others perhaps believe that lawyers, as professionals, must do more in the way of self-policing. Much might be said for any of these judicial techniques in terms of overall goals. However, regardless of approach, the fact remains that advocative misconduct constitutes a continuing, persistent challenge in need of effective policing.27
The first line of defense against taint is increased vigilance by the aggrieved counsel. Prompt and vigorous objection by offended counsel must be made. If warranted, a curative instruction and/or mistrial should be requested. The prejudiced attorney cannot sleep at the switch or be oblivious to the obvious. Yet, neither should he or she have to act as a fearful jack-in-the-box springing up at the beginning of every sentence by the opposing counsel.
The truth is both trial counsel and the courts have important roles to play. While they may complement each other and overlap in given situations, the judicial responsibility cannot be passed to counsel. Somehow, a tone or atmosphere of impermissible boundaries has to be set in the courtroom. And, where those bounds are crossed, effective policing and meaningful “cures” are required. This surely must mean more than a toneless remark by the court for the jury to disregard the infraction. If prejudice is truly to be dispelled, the jury also must understand that the indiscretion is an affront to the court. And where the process has been seriously tainted, appellate courts must act courageously to send a clear message to trial bench and bar.
1. 2016 N.Y. App. Div. LEXIS 8728 (2d Dep’t Dec. 28, 2016).
2. 295 U.S. 78, 88 (1935).
3. Id. at 88. See R.C. Mongrom, “I believe, the Golden Rule, Send a Message, and Other Improper Closing Arguments,” 48 Creighton L. Rev. 521 (June 2015); T. Bornstein, “Trespassing on Due Process: Constitutional Objections to Improper Closing Argument,” 34 Champion 38 (March 2010).
4. The Appellate Division, Second Department recently rejected a plaintiff’s appeal based on improper comments by opposing counsel because plaintiff either failed to object to these comments at trial or did not seek further curative instructions and “did not immediately move for a mistrial.” Lagos v. Fucale, 2016 App. Div. LEXIS 3711 (2d Dep’t May 18, 2016). In Ioffe v. Seruya, 2015 N.Y. App. Div. LEXIS 9402 (2d Dep’t Dec. 23, 2015), the court reversed and ordered a new trial on damages because the trial judge’s comments, while plaintiffs’ orthopedic surgeon was testifying, repeatedly emphasized that the witness was an examining rather than treating physician and was only “assuming” (via hypothetical questions the judge directed be asked) that future medical care would be needed. The court “conveyed an impression of incredulity” towards the physician’s opinions. A fair trial means one free from improper comments by the trial court as well.
5. See generally, E.L. Birnbaum, C.T. Grasso and Justice Ariel Belen (ret.), New York Trial Notebook (Rev. 9), Vol. 2, Chapts. 30 (Preparation and Presentation of Closing Argument), 31 (Objections During Closing Argument), (James Publishing 2016); M.J. Crowley and K.R. Gardner, Summation, Chapt. 19, in N.Y. State Bar Ass’n, Preparing For and Trying the Civil Lawsuit, Vol. 2 (2d ed., 2016 Revision); H.G. Miller, Some Do’s and Don’ts For Summation, Chapt. 20, in N.Y. State Bar Ass’n, Preparing For and Trying the Civil Lawsuit, Vol. 2 (2d ed., 2016 Revision); C.G. Floreale, “Closing Arguments—Not Just A ‘Free-For-All’,” Trial Techniques Committee Newsletter, pp. 8-12 (Summer 2012); M. Glass, “Summations in Civil Trials,” pp. 337-352 (NYSBA, Fall 2013); M. Glass, “A Guide to Openings and Summations: Part Five,” Aug., 5, 2015, http://www.rglzreport.com/a-guide-to-openings-snd-summations-part-five; R.S. Kelner and G.S. Kelner, “How To Reverse Your Case in Summation,” originally published in N.Y. Law Journal, http://www.kelnerlaw.com/pages/how-to-reverse-your-case-in-summation; R.L. Carlson and M.S. Carlson, “Outrageous Opponents: How to Stop Them in Closing Argument,” 6 Ga. B.J. 13 (2000-2001); W.J. DeSantis, “Improper Remarks During Openings and Closings; Should You Object?” N.J. Law Journal, Aug. 29, 2011); C.B. Hanson, “Improper Statements in Closing Argument,” Minnesota Lawyer (April 5, 2010) (author is Senior Assistant Director of Minnesota Office of Lawyers Professional Responsibility).
6. See, e.g., Arnold v. Eastern Air Lines, 681 F.2d 186, 194-195 (4th Cir. 1982) (panel majority deferred to trial judge’s discretion in refusing to reverse despite improper arguments the dissenting judge found egregious).
7. 938 F.2d 650 (6th Cir. 1991).
8. 938 F.2d at 652-53: “In reviewing this case, the court begins with the outrageous conduct of plaintiff’s attorney, and the inadequate response thereto by the trial court and defense attorney.”
9. Id. at 652, 653, 659.
10. Id. at 654-55, 659.
11. Id. at 653.
12. Id. at 653 n.2.
13. Id. at 653 n.1.
14. Id. at 653 n.3.
15. Id. at 653 n.3
16. Id. at 653.
18. Id. at 653 n.4.
19. Id. at 653-654 n.5.
20. Id. at 654 n.6.
21. Id. at 654.
24. “A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.”
25. 938 F.2d at 654.
26. 938 F.2d at 655, 659.
27. See, e.g., Buhr v. Mayer’s Digging Co., 2016 Iowa App. LEXIS 215 (Ct. App. March 9, 2016) (irrelevant evidence on indemnification repeatedly argued by counsel was prejudicial; verdict reversed); Esquivel v. Zuniga, 2013 Phila. Ct. Com. Pl. LEXIS 502 (Dec. 16, 2013) (egregious conduct by counsel including reference to punishing big company because of its size and power warranted mistrial and monetary sanctions for opposing counsel’s trial fees and costs of motion; Yost v. Falker, 2013 Mich. App. LEXIS 1100 (Ct. App. June 18, 2013) (improper comments by defense counsel that plaintiff was rushed to sue and mention of TV commercials would have justified a new trial but a note from the jury during deliberations deemed indication that the jury did not consider plaintiff unworthy of compensation; defense verdict affirmed).