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.
