Trial attorneys differ on the extent to which closing argument determines a trial’s outcome. Regardless, an attorney making a closing argument has no choice but to assume that the outcome of the trial hangs in the balance and to use every bit of rhetorical advantage allowed by the rules and the reported cases.
Texas Rule of Civil Procedure 269 is the best starting point to determine what lawyers may not do during closing argument in state court. Rule 269 requires the party bearing the burden of proof to “present his whole case as he relies on it” in the opening of his closing argument. The rule limits that party’s concluding closing argument to matters “only in reply to the counsel on the other side.”
Rule 269 requires attorneys “to confine the argument strictly to the evidence and to the arguments of opposing counsel.” Attorneys must avoid personal criticism of opposing attorneys, and the rule explicitly directs the court to treat such criticism as contempt of court. The rule states that sidebar remarks by opposing attorneys during argument “will be rigidly repressed by the court” and prohibits “unnecessary interruption made on frivolous or unimportant grounds” during an opponent’s argument.
The reported Texas cases contain other limitations on closing argument. Appellate courts have found all of the following not to be allowed during closing argument: 1. appeals to racial, religious or other prejudice; 2. references to matters outside of the record; 3. references to matters excluded by rulings on motions in limine; 4. expressions of attorneys’ personal opinions about the credibility of a witness; 5. appeals based on application of the “Golden Rule” – asking jurors to treat a party the way they would want to be treated, instead of asking the jury to act based on the evidence; 6. telling the jury the legal effect of its answers; 7. references to a party’s failure to call a witness equally available to both parties; 8. arguing questions of law; 9. making references to the relative wealth of the parties; 10. making references to a party’s insurance coverage; and 11. performing unauthorized in-court experiments.
In American Petrofina v. PPG Industries (1984), Fort Worth’s 2nd Court of Appeals found that the following argument improperly attacked the professional ethics and integrity of opposing counsel:
And when a man who has a degree in law from Southern Methodist University stands up and takes two hours of your time sprinkling it all through with “ain’t been no” and things like that, I apologize for that because he’s trying to talk down to you. . . . “Ain’t been no.” I would resent that if I were on a jury.
In Howard v. Faberge Inc. (1984), the 1st Court of Appeals in Houston found that a defense attorney’s in-court experiment during closing argument created reversible error. Howard was a products liability case involving a plaintiff who was burned when cologne that he had poured over his hands and chest allegedly ignited after the plaintiff accidentally dropped a lit match into his waistband. During closing argument, the defense attorney poured a liquid from an unmarked and unauthenticated bottle of what purported to be the cologne onto his arm, lit a match and passed the match near his arm, stating:
Let’s see how he did it. God, if I am wrong, burn me. My friends . . . I urge you to believe the evidence of your eyes. If you have any doubt about it, try it for yourselves. Under normal application, the product is not flammable. . . . I tried it a hundred times. If it had burned me one time, I wouldn’t have done it here. You don’t try this sort of thing in a courtroom without knowing in advance what is going to happen.
But the preceding examples do not tie the trial lawyer’s hands. In Southwestern Greyhound Lines Inc. v. Dickson (1951), the Texas Supreme Court stated that attorneys have wide latitude to engage in “flights of oratory” during closing argument. In Houston Lighting and Power Co. v. Fisher (1977), the 14th Court of Appeals in Houston likewise noted, “Counsel is not required to make such a luke-warm and sterile argument that the jury is unable to determine which side of the case he is on.”
Appellate courts in Texas have found all of the following to be allowed during closing argument: 1. arguments about questions of fact; 2. reasonable inferences and deductions from the facts; 3. arguments about the bias of witnesses or parties; 4. asking the jury to answer questions in a certain way, without advising the jury of the legal effect of their answers; 5. arguments relating the facts of the case to history, fiction, personal experience, anecdotes, Bible stories and jokes; 6. arguments suggesting a “per diem” method for the computation of damages — a mathematical computation based on a unit of time; 7. arguments based on common knowledge; 8. using visual aids; 9. commenting on the conduct or tactics of the opposition, provided it does not degenerate into mere personal criticism; 10. philosophical arguments not directly raised by the evidence, such as an argument that older people place a higher value on life than younger people; 11. arguments invited or provoked by an opponent; and 12. comments on a party’s failure to call a witness when the witness is under a party’s control in a special relationship with a party.
Appellate courts in Texas will not disapprove a closing argument merely because it employs colorful language and hyperbole. In Sheffield v. Lewis (1956), for example, the 6th Court of Appeals in Texarkana approved the following colorful closing argument:
Gentlemen, this instrument that says it is a lease, is a mineral deed, is a wolf in sheep’s clothing, and no wolf ever cut an innocent lamb out of a flock of sheep quicker and surer than this instrument cut all the oil, gas and other minerals from under Beulah’s land forever, and no lamb was ever more innocent than Beulah was at the time she signed this instrument as to the nature and effect thereof.
In Standard Fire Insurance Co. v. Reese (1979), the Texas Supreme Court approved a defense attorney’s closing argument that the plaintiff “drove by a thousand doctors between the Astrodome and Spring Branch,” without any evidence of the number of doctors in the vicinity. The Reese court observed that “hyperbole has long been one of the figurative techniques of oral advocacy” and noted references to “a thousand” in literary sources as varied as English playwright and poet William Shakespeare and English poets John Milton, William Wordsworth and Lord George Gordon Byron.
While the rules and the reported cases place limitations on trial attorneys, Texas has a longstanding tradition of giving trial attorneys wide latitude to employ “flights of oratory” and even hyperbole during closing argument, provided lawyers stay within the bounds of basic fair play.