Michael Hoenig ()
Although courts often decry improper argument, because of a reluctance to reverse or to order a new trial, prejudicial indiscretions nevertheless may go unpunished.1 With current levels of docket congestion, a proliferation of complex, multi-party cases and some tendencies towards lengthier trials, the problem of reluctance to grant a mistrial has worsened. The purpose of maintaining an expensive justice system is not merely to process cases through revolving doors but to assure fair proceedings. Allowing skilled and articulate counsel to appeal to jurors’ passions or prejudices degrades the law in the long run. The pain of a mere slap on the wrist obviously does not outweigh the offender’s “trip to the bank.”2
A split decision by the U.S. Court of Appeals for the Fourth Circuit decades ago illustrates the tensions that can flow from serious improprieties, and also demonstrates judicial frustrations in affording an adequate remedy. The decision is Arnold v. Eastern Air Lines, 681 F.2d 186 (4th Cir. 1982), which involved personal injury and wrongful death actions arising from a tragic air crash in North Carolina. The mass disaster resulted in 71 deaths and 11 serious personal injuries. A large sum was paid in settlement but four unsettled claims were consolidated for trial. Following a three week trial and 17 hours of deliberation, a jury returned substantial compensatory damage awards but denied punitive damages. The losing parties appealed.
A major issue on appeal was the conduct of counsel in making improper comments and arguments to the jury. The trial court refused to reject the verdicts. A majority of the Fourth Circuit panel decided to uphold the trial judge, but conceded that the conduct was improper and “in substantial part inelegant, tasteless, offensive, arguably violative of professional standards and, perhaps most deserving of condemnation, irresponsibly threatening to any verdicts that might in the end be obtained by offending counsel’s clients.” Id. at 195. The dissenting judge, however, scathingly drew the line and announced the implications of condoning such misconduct, noting that the majority’s ruling was an “open invitation to outrageous misbehavior by trial lawyers.” In effect, the offending attorney could be expected to ask, “what is a mere slap on the wrist, if, in exchange, I enhance my client’s recovery by hundreds of thousands of dollars? Others will come to me for representation on the basis of the size of the recovery, not on whether I behaved decently in court.” Id. at 212 (dissent).
What misconduct evoked such strong characterizations from all the appellate judges? The facts are contained in both the majority and dissenting opinions. Plaintiffs sued the airline for negligence. The airline impleaded the United States, alleging concurring negligence by air traffic controllers and seeking contribution. The airline admitted liability to plaintiffs for compensatory damages but denied liability for punitive damages. In the meantime, insurers of the airline who had made the out-of-court settlements sued the air traffic controllers under North Carolina common law for contribution. All of these proceedings were consolidated for trial.
In his opening statement one of the plaintiff’s counsel urged the jury to use the “Golden Rule” approach in fixing damages. He indicated that presentation of evidence of psychic injuries was not made to elicit sympathy but “what we do ask you to do is to listen to it carefully, place yourself, if you can, in their shoes.” Id. at 196. During jury selection, government counsel representing the contribution defendants called attention to the fact that the air traffic controllers had children, one of whom had recently died. In his opening statement the same attorney suggested that the only reason for the contribution claims was to mislead the jury as to the real issues. Id.
In closing arguments the plaintiffs’ and government’s counsel made an outright appeal for sympathy. One said, “I’m asking, I’m begging for your sympathy for this man … They [plaintiffs] are begging for your sympathy.” The attorneys also made disparaging remarks about defense witnesses such as: “For 40 bucks an hour, you can probably get almost anybody to say anything.” About the president of the airline, they said that he was “pompous,” “god-like” and that he, together with other management, were “condoning the very thing that killed 72 people.” Id.
Disparaging personal references were made about defense counsel such as: “The gang over here”; “the best [the airline's] money can buy”; that one defendant lawyer was “ashamed” of his case and that plaintiff’s counsel was “sorry for [him] and that kind of attitude.” Id. The airline’s wealth, position and general culpability were also subjects of intentionally inflammatory comments such as: “murderers’ row”; the “great white knight corporation”; “a poor little airline” which offered to buy [another line] for 342 million dollars”; that the same airline had been engaged in “whacking them into the trees in Houston … running off the runway in Buffalo … had killed 112 human beings in New York”; that “killing people and maiming people is something they’ve gotten immune to as a part of doing business.” Id.
The lawyers also offered personal opinions as to the merits of the airline’s defense and the contribution claims with descriptions such as: “outrageous”; “insulting”; attempt to “pass the buck”; airline’s “bad joke”; “makes me sick”; “makes me angry”; “haven’t taken on that human responsibility to say we’re sorry”; “lack of accountability”; as well as other personal comments about plaintiffs’ tactical decisions not to sue the air traffic controllers. Id.
There were also improper references to settlements and settlement offers such as: “no offer to settle Mrs. Weston’s case as long as I have been the attorney for the case”; defense counsel represents “the 19 insurance companies that have been busy buying off the claims of other people, and he’s finally run up against three human beings … and three lawyers that ain’t going to be bought.” Id. More detailed verbatim accounts of the offending arguments are also contained in the dissenting opinion. Id. at 208-10 n.1 (dissent).
Yet, the court majority refused to reverse for the misconduct. Of importance to the panel was the trial judge’s discretion. Was it a prejudicial abuse of discretion to refuse to set aside the verdicts? Here deference to the trial judge was deemed significant because such impropriety is “preeminently for on-the-scene sensing by trial judges.” Id. at 194. The trial judge can better assess “the immediate emotional and psychological effect of specific action and words on particular people.” Id. at 195. The appellate vantage point, on the other hand, is in a “retrospective review on a cold written record.” Id. The court looked to the “totality of the circumstances” and found that the trial judge’s task was particularly difficult because of the emotional tenor of the case. Id. at 197-99.
The majority assessment was that, while the conduct was improper, it was not on balance an abuse of discretion for the trial court to reject the verdicts. Since the court gave some cautionary instructions and since some of the comments were related to real issues in the case, reversal was not required. For the dissenting judge, however, the majority’s approach was unrealistic. The jury was aware of insurance and the amounts paid to others. The court’s scolding of offending counsel was insufficient to dissipate the prejudice. In essence, the trial judge was viewed by the dissent as so committed to his consolidation plan that “he could not bring himself to abandon it, even when outrageous excesses by counsel for the individual plaintiffs turned trial to travesty.” Id. at 211 (dissent).
A common offense during argument to a jury is counsel’s expression of his own personal opinion or belief of the justness of his cause or the credibility of some aspect of his opponent’s evidence. The phenomenon occurs frequently, in part because improper rhetoric during argument usually commands considerable leeway from trial judges unwilling to see weeks of trial effort go down the drain. Some judges believe that a blanket instruction from the court that argument of counsel is not evidence corrects the violation. Decisional law holds to the contrary, however.3 Such a blanket charge does not rectify a violation of the rule against an attorney’s expression of personal beliefs. The problem, in the first instance, is one of line-drawing. Is the argument an expression of personal opinion or merely fair comment on the evidence? Other pertinent questions asked by courts are: Was a timely objection made? Was there a “provocation” by opposing counsel? Was a timely curative instruction given by the trial court aimed at the precise misconduct? When the answers to these questions coalesce to reveal prejudicial misconduct, a new trial is required.
An example of these dynamics is contained in Polansky v. CNA Ins., 852 F.2d 626 (1st Cir. 1988), a suit claiming breach of an insurance contract stemming from a building fire that resulted in property damage and the deaths of five people. Plaintiff was trustee of the building and defendant was the carrier who claimed the insurance policy was void because plaintiff had deliberately set the fire. The jury disagreed with defendant and awarded plaintiff damages. On appeal, defendant claimed that improper argument by plaintiff’s counsel tainted the proceedings. The First Circuit agreed, reversed the judgment and remanded for a new trial.
The appellate court illustrated offending counsel’s inability “to keep his opinions and personal beliefs to himself.” Id. at 627. Thus, in summation, counsel stated as follows: “Well, it wasn’t convincing to me. I hope it wasn’t convincing to you … I say to you there is absolutely no way, in my opinion, that they would have agreed … I don’t believe Mr. Visocchi with regard to the vandalism claim …”
Defense counsel objected on four occasions. Twice the court simply stated that he would inform the jury that argument of counsel is not evidence. On the last two occasions the court ignored the objection. The First Circuit ruled this was reversible error. Courts long have recognized that statements of counsel’s opinions or personal beliefs “have no place in a closing argument of a criminal or civil trial.” Id. at 628 (citing cases). Such comments also were contrary to codes of professional conduct. Id. (citing ABA and New Hampshire rules). The Court of Appeals said that it would be “particularly reluctant to condone such behavior of counsel when, as here, there has been timely objection, no provocation by the opposition, and no ‘timely curative instruction directed particularly to [counsel's] comments.’” Id. The trial court erred by “not dealing promptly with counsel’s remarks … and informing offending counsel that his expression of personal beliefs and opinions would not be tolerated by the court.” Id. (citing United States v. Young, 470 U.S. at 8 (1985)).
Plaintiff’s counsel also made extensive reference, during opening statement as well as closing argument, to his conclusion that the carrier was defending the suit because it did not want to pay the families of those who died in the fire. The appellate court held that this argument “was made for clearly inflammatory purposes.” Id. at 629. Other improprieties also convinced the appellate court that counsel’s conduct resulted in prejudice requiring a new trial. Id. at 630-32.
Appeals to juries based on the wealth or size of the defendant prompt close scrutiny. In Draper v. Airco, 580 F.2d 91 (3d Cir. 1978), a wrongful death action was brought by the widow of an electrician who was killed when installing a switch on a power line. Three corporate defendants were found to have been negligent during the liability phase of the bifurcated trial. In the damages phase a jury returned a large verdict. On appeal, the Third Circuit held that it was reversible error to refuse to grant a new trial because of improper remarks made by plaintiff’s counsel in his closing argument.
Claimant’s counsel repeatedly made reference to the wealth of the defendants in contrast to the relative poverty of the plaintiff. It is improper to appeal to the sympathy of jurors through references to financial disparity. Id. at 95.4 Although the amount of money at stake in the construction project on which decedent worked was arguably relevant in establishing a motive for defendants to ignore reasonable safety precautions, when counsel’s argument was read as a whole, it was clear that the prejudice of the jury was intended to be aroused. In referring to the size of one of the parent companies, counsel stated as follows:
I am going to make the equalizer. You know what the equalizer between the multimillion dollar there for Dorothy Draper and her kids, its right here. On that side of the room is the equalizer … In this case I brought you the giants, the giants of the industrial world … I am going to ask you to tumble the magnificent big companies here with all their engineers.
Id. at 95.
The Third Circuit held that the thrust of these remarks was to have the jury base its verdict in favor of plaintiff on financial disparity. Justice, however, “is not dependent upon the wealth or poverty of the parties.” Id.
A second impropriety, violative of an attorney disciplinary rule, was counsel’s assertion of his personal opinion of the justness of his client’s cause.5 Counsel also spoke of his meeting and talking to the decedent’s children, none of whom had testified. That offense violated the prohibition against reference to facts not in evidence. Id. at 96. It was also prejudicial in its emotional context. Still another impropriety was counsel’s repeated vituperative and insulting references to defense counsel along with supporting gestures. Id.
On appeal, claimant’s counsel conceded that his conduct should not be condoned. However, he argued the improper statements did not so pervade the trial as to render the verdict a product of prejudice. Moreover, he contended, reversal was unnecessary since a curative instruction was given by the trial judge.6 The appellate court disagreed. The curative instruction “was not sufficient to remove the probability of prejudice,” especially since the instruction was given the day after closing argument. Id. at 97. The appellate court also assessed the argument as a whole and found it prejudicial. Even though the case was bifurcated and the improprieties occurred in the argument of one phase, a new trial on all issues was required. A similar problem was addressed by the Fifth Circuit in Edwards v. Sears, Roebuck & Co. 512 F.2d 276 (5th Cir. 1975).
Stanton v. Astra Pharmaceutical Prods., 718 F.2d 553 (3d Cir. 1983), where the claim involved an infant’s brain damage in reaction to administration of the anesthetic Xylocaine, presented prejudicial remarks of counsel regarding plaintiff’s race and socio-economic background. In his opening statement, plaintiffs’ counsel labeled the case “probably one of the most important civil cases which has ever come before a jury in the United States of America. I think when you see its implications, that it’s a test of our judicial system to see if a child who is at the lower end of our society, a person who is absolutely utterly helpless can come before a jury and receive fair and just compensation for the injuries which have been afforded to her.” Id. at 578. The attorney then sketched a portrait of the infant’s mother whose first husband was killed in Vietnam and whose second, the infant’s father, was killed as a victim of street crime while the mother was pregnant with the plaintiff. The third marriage was discussed, as was the plaintiff’s home.
Then the attorney reached the question of plaintiffs’ race. He said: “[W]e were concerned about the effect of having black people come to an area where there are not many black people and expecting to get justice from a jury which is mostly white people. We decided to confront this issue and we asked you the questions this morning, and we were really pleased with the responses that we got and we think this is an impartial jury and everyone here has sworn that they will try this case not on the basis of passions, or prejudice, or economic basis, but on the basis of the facts and the law.”
The appellate court deemed these remarks “beyond the ambit of proper opening statement.” The purpose of an opening “is to give the broad outlines of the case to enable the jury to comprehend it.” Id. at 579. Significant portions here were “beyond the realm of appropriate advocacy.” There must be limits to pleas of pure passion and restraints against blatant appeals to bias. As the court states, “justice must not be based on racial sympathy or animosity.” Id.
Improper argument appears in many shapes, forms and guises. It is a potential minefield for advocates (both offenders and the aggrieved). Counsel’s utmost vigilance is required. Objections and requests for relief on the record are necessary. The resources, texts and articles cited in this column, as well as the column previously published on this issue, provide much guidance and case law that practitioners can master to safely emerge from the minefield.
1. See, for example, Philip Morris USA v. Cuculino, 2015 Fla. App. LEXIS 6696 (May 6, 2015), where a substantial verdict in a tobacco case was affirmed on appeal despite improper comments by plaintiff’s counsel that the court said, “we do not condone” and that “trial counsel would be well-advised not to utilize such arguments in future closing arguments.” The court held the comments were not “so highly prejudicial and inflammatory” that defendant was denied its right to a fair trial.
2. In our January column, a substantial list of texts and articles providing guidance and case law on improper argument was presented in the endnotes. Additional resources offering discussion and citations to court decisions are: E.M. Hecht, “The Art of Summation in the Civil Case,” pp. 319-52 (NYSBA, Fall 2013); “Digest of Cases on the Propriety of Closing Arguments,” www.law.indiana.edu/instruction/tanford/b584.closinglaw.pdf (available via Google).
3. E.g., Polansky v. CNA Ins., 852 F.2d at 628 (1st Cir. 1988); U.S. v. Gonzalez Vargas, 558 F.2d 631, 633 (1st Cir. 1977).
4. See also Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975); Foster v. Crawford Shipping, 496 F.2d 788 (3d Cir. 1974); Koufakis v., Carvel, 425 F.2d 892 (2d Cir. 1970).
5. DR-7-106(c)(4) provided that a lawyer shall not “assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant … “However, counsel “may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.”
6. The text of the instruction is contained in footnote 9 at 580 F.2d 96.