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Improper Statements and Conduct in Opening and Closing Arguments

Opening Statements and Closing Arguments: What Constitutes Improper Argument and the Importance of Preserving Error

Justice Peggy A. Quince Florida Supreme Court Tallahassee, FL Hon. Virginia M. Kendall United States District Court, Northern District of Illinois Chicago, IL Kevin P. Durkin Clifford Law Offices Chicago, IL Dan Webb Winston & Strawn LLP Chicago, IL

Reprinted with permission

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Opening Statements and Closing Arguments: What Constitutes Improper Argument and the Importance of Preserving Error

Alina Alonso Rodriguez1

Carlton Fields, P.A. Jury trials are supposed to be a forum within which the parties, represented by competent,

professional and zealous counsel, present their positions in a coherent, thoughtful and respectful manner to their fact-finding peers. At times, however – usually while caught in the moment – counsel can cross the boundaries of appropriate argument.

When that happens, the practical considerations are many: Was the argument actually

improper? If so, when is it appropriate or necessary to object? What are the consequences of not objecting? When is the appropriate time to make a motion for mistrial in connection with these errors? Below you will find some guidance based on these issues.

While attorneys are usually given latitude in making their arguments to the jury, the

remarks must be confined to the evidence and reasonable inferences therefrom. See, e.g., Model Rules of Prof’l Conduct R 3.4(e) (stating that counsel shall not “in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.”).

It is particularly critical that an attorney be familiar with the jurisdiction’s requirements

for preserving this issue for appellate review. Many states have very specific procedures for preserving error in opening or closing arguments. In Florida, for example, the Florida Supreme Court has explained that “when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court's review of a motion for a new trial.” Companioni v. City of Tampa, 51 So.3d 452, 453 (Fla. 2010). If the party does not make a motion for mistrial after an objection is sustained, or if a party does not make any objection at all, the trial court will apply a much more rigorous standard. Under that standard, a party may obtain a new trial based on an allegedly improper comment only when he or she establishes that the comment was improper, harmful, incurable, and that it so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial (e.g., appeals to racial, ethnic, or religious prejudices). See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000).

Because the issue of improper comments has surfaced in numerous appeals, below you will find a sampling of what certain courts have found constitutes improper comments. Even if you find yourself in a jurisdiction other than those involved in the examples below, the comments found improper in these decisions may serve as guiding parameters or triggers for objections the next time you find yourself preparing your opening statement or closing argument or listening to your opponent’s.

1 Recognition to Paul Borr, of Carlton Fields, P.A., for his assistance with these materials.

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Comments attacking the opposing party, counsel or the opponent’s theory of the case.

o Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010) (finding reversible error where plaintiff attacked character of every person associated with defense, including counsel; painted defense as “frivolous” and as designed to “add [ ] insult to injury;” accused defense counsel of “try[ing] to fool you,” and stating “[w]e all make mistakes. But you make a bigger one when you don't admit it; and you make a bigger one to try to avoid responsibility. And you make a bigger one when you call in witnesses that don't tell the truth. Anything to win. Anything to save the day.”).

o Fasani v. Kowalski, 43 So. 3d 805 (Fla. 3d DCA 2010) (finding fundamental error and remanding for a new trial based in part on counsel’s comment that opposing counsel tried to hide evidence).

o SDG Dadeland Assocs. Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008) (accusing opposing counsel of hiding evidence and of fraudulently preventing the presentation of relevant evidence constituted reversible error; finding that argument that defense counsel “knows” defendant is liable, but must “protect the wallet of the corporate defendant” was improper).

o Sanchez v. Nerys, 954 So. 2d 630 (Fla. 3d DCA 2007) (reversing and remanding for a new trial where counsel argued that defense counsel was “'pulling a fast one,' 'hiding something,' and 'trying to pull something,' was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury”).

o Johnnides v. Amoco Oil Co., 778 So. 2d 443 (Fla. 3d DCA 2001) (reversing for a new trial where counsel attacked opposing counsel for trying to “confuse” and “mislead” jury, suggested other side prevented jury from hearing evidence, directed jury not to be “fooled” by counsel's arguments, vouched for truthfulness of own case, and accused plaintiff of hiring expert to come up with “scientific gobble-dee-cock that confuses the jury”).

o Sacred Heart Hosp. v. Stone, 650 So. 2d 676 (Fla. 1st DCA 1995) (finding that comments to the effect that the defense's theories were “ridiculous” were improper).

o Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994) (finding that comments as to the “outrageous” nature of the defenses and references to witnesses as “a good soldier” or “this joker” were improper).

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o Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA 1992) (concluding that defense counsel’s statements that opposing expert always found a permanent impairment, that plaintiff was seeking a large fortune, that plaintiff’s child is going to think that a lawsuit is the way to get ahead, that plaintiff should be thankful he was not injured more seriously, that defense counsel was telling the truth, and that plaintiff’s counsel would do anything to advance his cause were improper).

o Laberg v. Vancleave, 534 So. 2d 1176 (Fla. 5th DCA 1988) (concluding that defense counsel was not permitted to say that plaintiff’s counsel always asks for ten times more than what he is seeking).

o Roetenberger v. Christ Hosp., 839 N.E.2d 441 (Ohio Ct. App. 2005) (holding that remarks during closing argument by counsel attacking the plaintiff husband, husband’s counsel, and witnesses as greedy, empty-hearted people without souls who were manipulating the lawsuit and “branding” a good doctor all for sake of money were not supported by the evidence, clearly designed to arouse the jury’s passion and prejudice, inexcusable, unprincipled, and clearly outside scope of closing argument).

o Schoon v. Looby, 670 N.W. 2d 885 (S.D. 2003) (holding that doctor’s counsel’s accusations that plaintiff’s lawsuit was nothing more than playing the lottery was only meant to inflame jury and were beyond bounds of proper final argument).

o Cf. Cassim v. Allstate Ins. Co., 94 P.3d 513 (Cal. 2004) (stating that counsel’s right to discuss the merits of the case in argument to the jury is very wide as to both law and facts, that counsel may state his views as to what the evidence shows and the conclusions to be fairly drawn therefrom, and that opposing counsel cannot complain if the reasoning is faulty and deductions illogical, as such matters are for the jury).

o Cf. Forman v. Wallsheim, 671 So. 2d 872 (Fla. 3d DCA 1996) (stating that counsel is permitted to call witnesses liars if the evidence supports the statements).

o Cf. Bender v. Adelson, 901 A.2d 907 (N.J. 2006) (stating, as a general matter, that counsel is allowed to draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous, or absurd)

References to counsel's own experience and personal belief. o Grant v. Ariz. Pub. Serv. Co., 652 P. 2d 507 (Ariz. 1982) (holding that counsel’s

comments during closing argument that counsel “knew” testimony was not true constituted improper comment regarding counsel’s personal belief).

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o Mercury Ins. Co. of Fla. v. Moreta, 957 So. 2d 1242 (Fla. 2d DCA 2007) (concluding that remarks regarding what counsel’s 14-year-old son would have thought about insurer’s defense of case were improper).

o Muhammad v. Toys “R” Us, 668 So. 2d 254 (Fla. 1st DCA 1996) (finding that counsel’s anecdote comparing his wife, who did not return to department store for over a year after a bad experience there, to the plaintiff, who purchased a second bicycle from Toys “R” Us shortly after the first bicycle allegedly caused an accident, constituted an improper attack on the witness’s credibility).

o Dutcher v. Allstate Ins. Co., 655 So. 2d 1217 (Fla. 4th DCA 1995) (stating that comments based on counsel's own experience or references to what other lawyers have done or what has occurred in other lawsuits is in direct violation of Rule 4-3.4(e) and are improper).

o Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993) (holding that counsel's comments regarding what is “well known,” and counsel's view that in his experience, making beds and vacuuming is not a debilitating experience, were improper).

o Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993) (finding that comment that “plaintiff's medical expert was 'nothing more than an unqualified doctor who prostitutes himself . . . for the benefit of lawyers'“ was improper).

o Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991) (holding that counsel’s comments were improper where counsel commented on, among other things, how he would have reacted under the circumstances of the collision);

Comments asking the jury to serve as the conscience of the community. o Kiwanis Club of Little Havana v. de Kalafe, 723 So. 2d 838 (Fla. 3d DCA 1998)

(reversing and remanding for new trial where plaintiff’s counsel repeatedly appealed to jury’s “community conscience” and “civic responsibility” during closing).

o Airport Rent-A-Car v. Lewis, 701 So. 2d 893 (Fla. 4th DCA 1997) (noting that conscience of the community argument “extends to all impassioned and prejudicial pleas intended to evoke a sense of community law through common duty and expectation.”).

o Klose v. Coastal Emergency Servs. of Ft. Lauderdale, 673 So. 2d 81 (Fla. 4th DCA 1996) (finding it improper to comment that verdict should, in some part, be motivated by the effect a finding of liability might have on defendant's professional reputation).

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o Bellsouth Human Resources Admin., Inc. v. Colatarci, 641 So. 2d 427 (Fla. 4th DCA 1994) (finding it improper to argue: “I understand Mr. Gordon said it himself, corporate America. You know, the folks that brought you the gas tank that explodes, and agent orange and silicone breast implants”).

o S.H. Inv. & Dev. Corp. v. Kincaid, 495 So. 2d 768 (Fla. 5th DCA 1986) (concluding that counsel’s argument was improper where he argued that “[t]he opportunity that you have is to speak with a voice so loud and so strong and so firm that it will reach from here to Miami, Florida and from Miami, Florida to the heart of [non-party] Chase Manhattan Bank and those corporations in New York City and throughout all of the fifty or a hundred or however many corporations that have some kind of collateral dealing here. That is your opportunity.”)

o Cf. Ocwen Financial Corp. v. Kidder, 950 So. 2d 480 (Fla. 4th DCA 2007) (concluding that closing argument by former employees in action against employer properly urged jury to send a message to employer where claims for punitive damages were submitted to the jury).

Comments in violation of the “Golden Rule” o Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010) (reversing and remanding

based on statement during closing argument that “we can't feel [plaintiff's] pain,” inviting jury to “guess, only imagine” plaintiff's pain, “[s]cars are only tiny on somebody else's face,” and by admitting liability, “[t]he defendant wrote a blank check”).

o SDG Dadeland Assocs. Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008) (“Even when an attorney does not explicitly ask the jurors how much money they would wish to receive in the plaintiff's position, comments may violate the Golden Rule if they implicitly suggest that the jury place itself in the plaintiff's position.”).

o Bocher v. Glass, 874 So. 2d 701 (Fla. 1st DCA 2004) (reversing and remanding for a new trial where counsel argued during closing in wrongful death suit that, if plaintiffs were given the choice between millions of dollars and a “magic button” that could bring their child back, the plaintiffs would quickly push the button).

o Metro. Dade County v. Zapata, 601 So. 2d 239 (Fla. 3d DCA 1992) (stating that by asking the jury to “imagine” what life is like for plaintiff, counsel makes it impossible for “a calm and dispassionate consideration of the evidence and the merits”).

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o Cf. McNally v. Eckman, 466 A.2d 363 (Del. 1983), overruled on other grounds by Wright v. State, 953 A.2d 144 (Del. 2008) (stating that while phrases such as “suppose you had just one of the elements,” “suppose that was all you had to deal with,” and “suppose all you had to do was” are ill-advised, the remarks were de minimis and the trial court’s instruction cured any possible prejudice);

o Cf. Simmonds v. Lowery, 563 So. 2d 183 (Fla. 4th DCA 1990) (reversing order granting new trial where plaintiff’s counsel properly asked jury “to think about what you would pay someone for one day of what you will hear she has to go through and for the rest of her life.”).

References to the wealth or poverty of a party. o Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010) (stating that no reference may

be made to the wealth or poverty of a party during the course of the trial; improper to argue “[plaintiff's] still sitting here in debt [with] over $80,000 in medical expenses”).

o Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007) (finding that comments regarding economic disparity among clients were improper).

o Werneck v. Worrall, 918 So. 2d 383 (Fla. 5th DCA 2006) (concluding that reference to sales generated by defendant’s furniture store and number of truck trailers owned by defendant’s delivery service constituted an improper comment on defendant’s wealth).

o Cf. Target Stores v. Detje, 833 So. 2d 844 (Fla. 4th DCA 2002) (concluding that reference to store as “big corporation” in slip and fall action was not improper as, taken in context, comments were not an invitation to decide case on basis of parties’ financial status).

o Cf. Olson v. Richard, 89 P.3d 31 (Nev. 2004) (holding that counsel’s remarks

informing the jury that his clients were not wealthy people were improper, but concluding that trial court did not abuse its discretion in denying motion for new trial where there was no evidence that jury reached its verdict solely on the basis of passion and prejudice);

References to matters outside the evidence. o Enter. Leasing Co. v. Sosa, 907 So. 2d 1239 (Fla. 3d DCA 2005) (finding that

court did not abuse discretion in sustaining objections to statements by counsel during closing as to other possible causes of accident where argument was based on facts not in evidence).

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o Airport Rent-A-Car v. Lewis, 701 So. 2d 893 (Fla. 4th DCA 1997) (holding that plaintiff’s counsel’s comments that defendant was a “crazy man” and that he improperly turned in appellee to the IRS constituted prohibited references to matters outside the record).

o Hunt v. Freeman, 550 N.W.2d 817 (Mich. Ct. App. 1996) (holding that comments during closing argument that plaintiff could have avoided “drinking and then driving” after plaintiff acknowledged drinking part of a wine cooler before driving were improper and injected a false issue into the case where there was no testimony showing that consuming part of a wine cooler could affect a person’s ability to perceive and react)

Comments on lack of evidence or failure to call a witness. o Greenberg v. Schindler Elevator Corp., 47 So. 3d 901 (Fla. 3d DCA 2010)

(reversing and remanding for new trial where counsel argued during closing that there was no evidence of prior problems with the subject escalator after the trial court excluded such evidence).

o Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007) (finding that comments by counsel during closing argument regarding the lack of evidence of cruise ship's alternative life-care plan were improper given that counsel had succeeded in excluding the evidence he argued was lacking in negligence suit).

o Gianos v. Baum, 941 So. 2d 581 (Fla. 4th DCA 2006) (reversing for new trial based on trial court’s refusal to allow counsel for patient’s estate to comment during closing argument on the physician’s failure to call a pathologist; comment was appropriate because it was a comment on physician’s lack of rebuttal evidence).

o Target Stores v. Detje, 833 So. 2d 844 (Fla. 4th DCA 2002) (finding that it was improper for customer’s attorney in slip and fall action against store to call jury’s attention to fact store had submitted only one of several photographs attached to incident report, thereby raising adverse inference about store’s failure to introduce other photographs in evidence, where customer’s attorney had seen other photographs and knew they were merely cumulative of photograph in evidence).

o Lowder v. Economic Opportunity Family Health Ctr., 680 So. 2d 133 (Fla. 3d

DCA 1996) (concluding that counsel was not permitted to argue for adverse inference that a witness was not called when witness was equally available to both parties, testimony was cumulative, and there was a valid explanation as to why the witness could not be called).

o Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d DCA 1989) (finding it improper to challenge opposing counsel to explain absence of witness because the response would require opposing counsel to improperly reference matters outside of the evidence).

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o In re Quinn, 763 N.E. 2d 573 (Mass. App. 2002) (stating that, while witness may assert privilege against self incrimination if called upon to testify, privilege does not prevent opposing counsel from commenting on defendant’s choice not to testify or the fact finder from drawing a negative inference therefrom, both of which protections attach in a criminal case).

Comments regarding pretrial litigation o De Anza Santa Cruz Mobile Estates Homeowners Ass’n v. De Anza Santa Cruz

Mobile Estates, 114 Cal. Rptr. 2d 708 (Cal. App. 6th 2001) (concluding that comments during closing argument relying on defendants’ “reprehensible” and “strong arm” conduct during litigation in asking the jury to award punitive damages improperly inflamed the jurors and infected the entire trial and undermined the integrity of the punitive damages award).

o Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So. 2d 43 (Fla. 3d DCA 2006) (concluding that defendant sued by apparel company for misrepresenting textile company’s financial health could not disclose to jury, at trial for breach of fiduciary duty and negligent misrepresentation, that apparel company had voluntarily dismissed claims against textile company and its two principals because such dismissal was irrelevant).

Otherwise highly inflammatory comments. o Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010) (stating that it is improper to

argue that, despite admitting liability, defendant was not contrite and never apologized for the accident);

o Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007) (finding that comments during closing argument asking the jury to place a monetary value on plaintiff's life by comparing a $20 million Van Gogh painting to employee's life, which was created by the greatest creator there is, was highly improper).

o Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (condemning comments comparing tobacco industry to Holocaust and slavery).

o USAA Cas. Ins. Co. v. Howell, 901 So. 2d 876 (Fla. 4th DCA 2005) (concluding that closing argument associating insurer with the Iraqi Minister of Information was improper in a suit to recover uninsured motorist benefits where argument bore no relation to evidence introduced during trial).

o Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So. 2d 838 (Fla. 3d DCA 1998) (finding it improper to compare defendant's actions to “political methods in Cuba” and appeal to jury’s political and social interests).

o Superior Indus. Int’l, Inc. v. Faulk, 695 So. 2d 376 (Fla. 5th DCA 1997) (stating that appeals to the jury's sympathy by “evoking a parade of imaginary horribles” are improper).

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o Eastern S. S. Lines, Inc. v. Martial, 380 So. 2d 1070 (Fla. 3d DCA 1980) (finding

it improper to compare plaintiff's suffering to Job from the bible and victims of Vietnam).

o Deck’s Inc. v. Nunez, 299 So. 2d 165 (Fla. 2d DCA 1974) (concluding it was improper to suggest that jury award enough to cover plaintiff’s attorney’s fees).

o Chesapeake & Ohio Railway Co. v. Shirley’s Administratrix, 291 S.W. 395 (Ky. 1926) (holding that it was improper for an attorney to state: “You killed their Santa Claus [pointing to defendant’s counsel]. In the name of God, I ask you to fill their stockings on Christmas Eve night, and I ask it for Jesus’ sake.”)

o Living Ctrs. of Texas, Inc. v. Penalver, 246 S.W. 3d 678 (Tex. 2008) (reversing and remanding for a new trial where plaintiff’s counsel compared defendants’ counsel’s attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed);

o Cf. Grau v. Branham, 761 So. 2d 375 (Fla. 4th DCA 2000) (affirming judgment, even though comments that textbook shown to plaintiff before surgery was used by Nazis were “highly inflammatory,” because “our court has all but closed the door on fundamental error in civil trials”).

While at times these comments may constitute an isolated reference, more often than not, they become a running theme throughout counsel’s argument. Because of this, it is important to consider the cumulative effect of these arguments. See, e.g., Bocher, 874 So. 2d at 704 (quoting Manhardt v. Tamtom, 832 So. 2d 129, 133 (Fla. 2d DCA 2002) (“there is a point where the 'totality of all errors and improprieties' are 'pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.'“)).

In short, it is important that counsel remain vigilant and properly object to improper

comments. These are more and more becoming an issue in appellate decisions and resulting in reversals of otherwise “fair” trials.


Improper Comments in Opening and Closing Arguments in Civil Cases:



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Improper Comments in Opening and Closing Arguments in Civil Cases

April 25, 2013

Kevin P. Durkin, Clifford Law Offices, P.C.*

It is difficult to have a jury verdict in a civil case reversed on appeal. Why? Juries are

repeatedly reminded by the court that what we lawyers say in opening and closing argument is

not evidence. Then there’s the deferential standard of review on appeal – most of the time, the

failure to sustain a proper objection to improper comments is reviewed for an abuse of discretion.

And there’s the appellate safety valve known as “harmless error.” For instance, during closing

argument in Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388 (7th Cir. 2011), the

plaintiff’s counsel suggested that the defendant had falsified a document admitted into evidence

as a joint exhibit. The district court overruled the defendant’s objection. Id. The Seventh Circuit

held that while the argument was improper, and the defendant’s objection should have been

sustained, the inappropriate suggestion that the document was fabricated did not rise to a level of

error that made it an abuse of discretion to deny the motion for a new trial. Id. The court stated

that improper comments during closing argument rarely amount to reversible error, and curative

instructions to the jury are presumed to mitigate harm that may otherwise result from improper

comments during sometimes heated closing argument. Id. So if the only issue on appeal is

improper comments, the odds are not in the appellant’s favor.

But it can happen. So it’s important to know not only what type of comments are

inappropriate, but also how to properly preserve an objection to improper comments for appellate

review.

If counsel made improper comments, the verdict may set aside only if there is a

reasonable probability that the verdict of the jury has been influenced by such conduct. Balsley v.

LFP, Inc., 691 F.3d 747, 761 (6th Cir. 2012). Courts may consider several factors in determining

whether a new trial is warranted based on improper remarks, including the severity of the

misconduct; whether it was deliberate or accidental; the context in which it occurred; whether the

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judge gave any curative instructions and their likely effect; the strength of the evidence against

the defendant; the nature of the comments; the frequency of the comments; the possible

relevancy to the real issues before the jury; whether the remarks were invited by

improper conduct of opposing counsel; and the verdict itself. Id. On the other hand, untimely

objections, which a party fails to make immediately after closing arguments, are reviewed for

plain error. Granfield, 597 F.3d at 490. That’s a tough standard to meet, but it can be met. See

e.g., Petraski v. Thedos, 963 N.E.2d 303, 319 (Ill.App.Ct 2011) (granting the plaintiff a new trial

where defense counsel improperly charged the jury with rendering a moral or social judgment in

verdict form because Illinois courts have explicitly refused to allow moral or social arguments in

the context of cases involving drunk driving; stressed the police officer’s job as a public servant

with a taxpayer-funded salary, implying that the jurors, as taxpayers, should identify themselves

with the defendant city; and provided a personal story emphasizing the social danger of drunk

driving even though plaintiff’s counsel failed to object to these comments).

Objections

When a party makes an improper comment in opening statement or closing argument,

opposing counsel should immediately object to the impropriety and the court should issue a

curative instruction. A party must object to the curative instruction or lack thereof when the court

informs it of proposed instructions or immediately at trial after learning that the instruction will

be given or refused. See Fed. R. Civ. P. 51. A proper objection reserves the right to move for a

mistrial after the verdict. Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 547 (6th Cir. 2012).

Several circuits have adopted a waiver rule governing requests for a new trial whereby a motion

for a mistrial must precede a motion for a new trial based on misconduct known to the moving

party before the case is submitted to the jury. Id. Much of the persuasive precedent focuses on

the failure to make either an objection or a motion for a mistrial, suggesting that either would be

sufficient to preserve the right to a new trial on a motion for a new trial under Rule 59. Id.

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The problem is that making a timely objection might fix the problem! For instance, in

Burroughs v. Mackie Moving Sys. Corp., 690 F.3d 1047, 1051 (8th Cir. 2012), during rebuttal

argument, the plaintiffs’ attorney characterized the defendant insurance company as a serial

denier of legitimate claims, saying that the company had no problem with contracting for

coverage that it then refused to provide. The defendant objected to those statements, and the

district court sustained that objection. Nevertheless, the plaintiffs’ counsel continued to

characterize the defendant as “trying to get around their obligations that were bought and paid

for.” After another sustained objection, the plaintiffs’ attorney concluded by asking the jury to

“send [the plaintiffs] home finally with what they thought was paid for and bought, that

protection.” In denying the defendant’s Rule 50 motion for a new trial, the district court

concluded that, although the plaintiffs’ attorney’s statements were improper, they were not

sufficiently prejudicial to warrant a new trial. The Eighth Circuit held that by sustaining two

objections to the improper statements, the district court demonstrated to the jury that the

statements were improper and minimized the degree to which the jury relied on them. Id. at

1052.

Curative Instruction

Courts have held that a curative instruction is sufficient to correct any potential harm

done by an improper comment, and grant a motion for a new trial if it is the only possible

remedy to prejudicial error. Granfield v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010).

In Granfield, 597 F.3d at 491, the plaintiff’s counsel’s suggested to the jury that it put

itself in the shoes of the plaintiff. The First Circuit noted that the “walking in the plaintiff’s

shoes” argument, or as it is sometimes called, the Golden Rule argument, has been universally

condemned because it encourages the jury to depart from neutrality and to decide the case on the

basis of personal interest and bias rather than on evidence; however it is not per se reversible

error. The First Circuit held that even if counsel’s remarks were improper, the brief comments

were sufficiently neutralized by the district judge’s curative instructions.

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But there’s a limit to what a curative instruction can do. In Caudle v. Dist. of Columbia,

the District of Columbia Circuit reversed a verdict for the plaintiff due to several improper

remarks during closing argument. Caudle v. Dist. of Columbia, 11-7107, 2013 WL 561355 (D.C.

Cir. Feb. 15, 2013). The district court sustained objections to three Golden Rule comments and

instructed the jury to disregard them. Id. at *4-5. The plaintiff’s counsel also made an improper

“send a message” argument. Id. at *5. Because the case was close and the comments went to

central issues in the case, the D.C. Circuit found that the district court’s curative instructions

were not sufficient to remove the prejudice caused by multiple improper comments and

remanded the case for a new trial. Id. at *5-6. See also Pleasance v. City of Chicago, 920 N.E.2d

572, 578-79 (2009) (finding improper comments constituted reversible error where the plaintiff’s

attorney told the jury that it was their duty to defend the legal system from “abuse” and

“injustice,” to send a message to the community, and to eradicate the racial injustices described

by Dr. Martin Luther King, Jr., even though the trial court sustained the defendant’s objections

and offered a curative instruction).

* Recognition to Loyola law student Tracy Gibbons for her work on this article.


Opening and Closing Arguments:



American Bar Association Section of Litigation Second Annual Conference

Chicago, Illinois April 24-26, 2013

Opening and Closing Arguments

Opening and closing arguments are an attorney’s opportunity to first explain to the

jury what will be presented at trial and secondly to lay out from the parties’

perspective what the jury has actual heard. While parties will often give a slant of

the facts that is favorable to their side, this is not the time to inflame the jury with

extraneous rhetoric. A prosecuting attorney’s obligation in regard to criminal trials

was articulated years ago by the United States Supreme Court in Berger v. United

States, 295 U.S. 78, 88 (1935), when the Court said:

A prosecutor’s interest in a criminal prosecution is not that he (or she) shall win a case, but that justice shall be done … He (or she) may prosecute with earnestness and vigor – indeed he (or she) should do so. But while he (or she) may strike had blows, he is not at liberty to strike foul ones. It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

This admonition to prosecutor about prosecutions in general certain includes the

opening and closing phases of a trial. Generally, our Oaths of Admission and

Creeds of Professionalism also require attorneys in the criminal and civil arenas to

zealous advocate but not cross that line where advocating becomes misleading, or a

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distortion, or an exaggeration. The following is a selection of cases involving the

issue of improper statements during opening and/or closing arguments. Many of

the cases are criminal cases, but they illustrate what can happen (or could happen if

properly preserved by objection) when we become overzealous in our advocacy.

Poole v. State, 997 So 2d 382 (Fla. 2008).

During the cross-examination of a defense mitigation witness (the accused’s older brother), the prosecutor asked the witness about the defendant’s arrest history and about tattoos. The court reversed a sentence of death and remanded for a new penalty phase because the prosecutor presented inadmissible evidence of Poole’s prior criminal activity in the guise of witness impeachment. The court also found the evidence about the tattoos inadmissible as improper nonstatutory aggravation.

Brooks v. State, 762 So. 2d 879 (Fla. 2000).

On appeal, Brooks argued that the prosecutor made numerous improper comments during the closing argument. This Court found that statements made by the prosecutor impermissibly "inflamed the passions and prejudices of the jury with elements of emotion and fear." Id. at 900. After considering the cumulative effect of numerous improprieties in the prosecutor's penalty phase closing argument, coupled with the jury's seven-to-five vote for a death sentence, this Court vacated Brooks' sentence and remanded the case for new penalty phase hearing before a new jury.

Ruiz v. State, 743 So. 2d 1 (1999).

Ruiz argued on appeal that prosecutors made improper arguments during the closing argument of both the guilt and penalty phases of the trial. This Court found that the prosecutor improperly sought to bolster the credibility of the State's case by making statements which implied that "prosecutors as representatives of the State have no interest in convicting anyone other than the guilty." Id. at 5. The Court stated: "It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant." Id. at 4. The Court adopted the view of the Fifth Circuit which explained that statements such as "we try to prosecute only the guilty" are indefensible:

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This statement takes guilt as a pre-determined fact. The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, arguably it may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Appellant's trial was held and the jury impaneled to pass on his guilt or innocence, and he was clothed in the presumption of innocence. The prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial not sit as a thirteenth juror.

Id. at 5. Ultimately the case was reversed and remanded for a new trial.

Gore v. State, 719 So. 2d 1197 (Fla. 1998).

On appeal, the defendant cited several instances where the prosecutor made improper comments. First, Gore cited an instance where the prosecutor exhorted the jurors during closing argument to convict him if they disbelieved his testimony. Defense counsel timely objected to the prosecutor's arguments, but each time his objections were overruled by the trial judge. This Court found that the trial court erred, because the prosecutor's statements shifted the burden of proof to the defendant. Numerous instances were cited where the prosecutor engaged in questionable conduct. This Court remarked:

We can appreciate from our review of the record that Gore was a most difficult defendant and source of frustration to both the trial court and the prosecutor. However, that frustration cannot justify the prosecutor's behavior. We expect prosecutors, as representatives of the State, to refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner. See, e.g., Urbin v. State, 714 So. 2d 411, 418-22 (Fla.1998); Garron v. State, 528 So. 2d 353, 359 (Fla.1988); Adams v. State, 192 So .2d 762, 764-65 (Fla.1966); see also Campbell v. State, 679 So. 2d 720, 725 (Fla.1996); Nowitzke v. State, 572 So. 2d 1346, 1356 (Fla.1990); Bertolotti v. State, 476 So. 2d 130, 133 (Fla.1985).

This case is one more unfortunate demonstration that "there are [still] some [prosecutors] who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom." Urbin, 714 So.2d at 422. As we did in Garcia v. State, 622 So. 2d 1325, 1331-32 (Fla.1993), Campbell, 679 So. 2d at 725, Nowitzke, 572 So. 2d at 1356, and

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Garron, 528 So.2d at 359, we once again repeat our admonition in Bertolotti, 476 So. 2d at 133:

[W]e are deeply disturbed as a Court by continuing violations of prosecutorial duty, propriety and restraint. We have recently addressed incidents of prosecutorial misconduct in several death penalty cases.... It ill becomes those who represent the state in the application of its lawful penalties to themselves ignore the precepts of their profession and their office.

The prosecutor in this case exceeded the bounds of proper conduct and professionalism and provided a "textbook" example of overzealous advocacy. This type of excess is especially egregious in this, a death case, where both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects.

Id. at 1202. This Court reversed and remanded the case for a new trial. Urbin v. State, 714 So. 2d 411 (Fla. 1998).

Urbin argued that the prosecutor's penalty phase argument rendered the entire sentencing proceeding fundamentally unfair. During the closing argument, the prosecutor referred to the defendant as evil, invited the jury to disregard the law, misstated the law, and inflamed the emotions of the jury. Although this Court affirmed Urbin's first-degree murder and robbery convictions, it reversed his death sentence and remanded the case.

Bonifay v. State, 680 So. 2d 413 (Fla. 1996).

The defendant argued that the prosecutor's closing argument which contained biblical references constituted fundamental error. This Court rejected that argument, noting that in the context of the entire argument, the reference was not fundamental error or even harmful error. However, this Court remarked:

We do, however, caution against the use or approval of arguments which use references to divine law because argument which invokes religion can easily cross the boundary of proper argument and become prejudicial argument. Further, we do find that the use of the word "exterminate" or any similar term which tends to dehumanize a capital defendant to be improper. We condemn such argument and caution prosecutors against arguments using such terms.

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Id. at 418 fn. 10.

King v. State, 623 So. 2d 486 (Fla. 1993). During the closing argument at the penalty phase, the prosecutor "gave a dissertation on evil" that the jurors "would be cooperating with evil and would themselves be involved in evil just like King if they recommended life imprisonment." See id. at 488. This Court found that the prosecutor went too far, and as such, a new sentencing proceeding before a jury was granted.

Rhodes v. State, 547 So. 2d 1201 (Fla. 1989).

In Rhodes, the defendant argued that the prosecutor made five remarks during closing argument which warranted a mistrial. After each comment was made, defense counsel objected and moved for a mistrial. The trial judge overruled the objections and denied each motion. This Court noted that "prosecutorial error alone does not automatically warrant a mistrial." See id. at 1206. However, this Court observed:

While none of these comments standing alone may have been so egregious as to warrant a mistrial, this is not a case of merely a single improper remark. The prosecutor's closing argument was riddled with improper comments, and not once did the trial judge sustain an objection and give a curative instruction to the jury to disregard the statements. We believe the cumulative effect of the improper remarks in the absence of curative instructions was to prejudice Rhodes in the eyes of the jury and could have played a role in the jury's decision to recommend the death penalty.

Id. Ultimately, this Court vacated Rhodes' sentence and remanded the case to the trial court for a new sentencing proceeding.

Robinson v. State, 520 So. 2d 1 (Fla. 1988).

In Robinson, the defendant was convicted by jury of first-degree murder and sentenced to death. Robinson appealed, arguing that the State's cross-examination of the defense's medical expert during the penalty phase injected evidence calculated to arouse racial bias. During the penalty phase, the prosecutor attempted to insinuate through its line of questioning that the defendant, a black man, had a habit of preying on white women. This Court opined: "Our courts consistently have held that the trial judge should not only sustain an objection to such improper conduct but also should reprimand the offending prosecuting officer in order to impress upon the jury the gross impropriety of being influenced by

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improper argument or testimony." Id. at 7. As a result of the prosecutor's improper comments, this Court remanded the case for resentencing.

Teffeteller v. State, 439 So. 2d 840 (Fla. 1983).

In Teffeteller, this Court found that the trial court erred during the penalty phase in denying the defendant's motion for a cautionary instruction or mistrial based upon improper and prejudicial comments made by the prosecutor. During his argument to the jury, the prosecutor urged the jury recommend that the defendant "receive the death penalty or else he would be paroled in twenty-five years." See id. at 844. This Court held that is was reversible error for the trial court to deny the defendant's motion because it could not "determine that the needless and inflammatory comments by the prosecutory did not substantially contribute to the jury's advisory recommendation of death during the sentencing phase." See id. at 845. This Court also remarked:

This is yet another example of inexcusable prosecutorial overkill, resulting in a sentencing retrial before a jury. The material and human resources of the state are thus squandered. If this were a matter of first impression in this jurisdiction, there might arguably be some justification for counsel's indulging in such elocution, but this Court has previously condemned this type of conduct. The failure to heed what the Court has said before in this area thus necessitates a sentencing retrial. The remarks of the prosecutor were patently and obviously made for the express purpose of influencing the jury to recommend the death penalty. The intended message to the jury was clear: unless the jury recommended the death penalty, the defendant, in due course, will be released from prison and will kill again, this time two of the witnesses who testified against him, and maybe others. There is no place in our system of jurisprudence for this argument.

Id. Teffeteller's death sentence was vacated and remanded to the trial court for a new sentencing proceeding with a jury.

Gonzalez v. State, 97 So 2d 127 (Fla. 1957).

In Gonzalez the prosecutor during final closing argument discussed the nature of the defendant's prior conviction(s) and included inaccurate information. In granting a new trial, the Supreme Court said:

The prosecuting officer properly functions in a quasi-judicial capacity with reference to the accused, and it is not alone his duty to prosecute but also to see that the accused is accorded a fair and impartial trial.

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Craig v. State, 685 So. 2d 1224 (Fla. 1996).

On appeal from a resentencing in a capital case the Supreme Court found the prosecutor had mislead and kept from the jury critical information concerning the disparate sentencing of the codefendant in violation of Giglio and Routly. The prosecutor's examination of the codefendant left the jury with the impression that the codefendant was in prison when he was in fact on work release and was to be paroled in the near future. In vacating the defendant's sentence, the Court said,

"The actions of the prosecutor also violated other established rules of conduct which recognize that our adversary system of justice has its limitations in the prosecution of criminal case, and especially capital cases. The resolution of such cases is not a game there the prosecution can declare, "It's for me to know and for you to find out."

DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 1997).

In a prosecution for aggravated assault with a firearm the district court found prosecutorial misconduct when the prosecutor asked the defendant a question concerning a specific prior violent act, when the prosecutor made an improper golden rule argument, and when the prosecutor compared the case to the O.J. Simpson murder case. In reversing the case for a new trial, the court again reminded prosecutors of their role in the criminal justice process.

We again find it necessary to remind the prosecutor of the following often cited well-settled principle: the prosecutor's duty is not to obtain convictions but to seek justice, and he or she must exercise that responsibility with the circumspection and dignity the occasion calls for. The prosecutor's case must rest on evidence, not innuendo. If the prosecutor's case is a sound one, then the evidence should be enough. If it is not sound, the prosecutor has a duty to refrain from innuendo to give the case a false appearance of strength.

Pendarvis v. State, 752 So. 2d 75 (Fla. 2d DCA 2000).

The district court reversed the defendant's convictions on 129 counts of possession of child pornography based on "gross" prosecutorial misconduct when the prosecutor crossed out a portion of the word "introvert", replaced it with the word "pervert" and displayed this to the jury out of the sight of the defense attorney. In so doing the Second District quoting from Washington v. State, 98 So. 605 (Fla. 1923), said, "The prosecuting attorney occupies a semijudicial position. He is a sworn officer of the government, with no greater duty imposed on him than to preserve intact all of the great sanctions and traditions of the law. It matters not

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how guilty a defendant in his opinion may be, it is his duty under oath to see that no conviction takes place except in conformity to law." See also, Palazon v. State, 711 So. 2d 1176 (Fla. 2d DCA 1998) (new trial awarded in a sexual battery case where the district court found prosecutorial misconduct in the prosecutor's closing argument was an attack on the defense attorney).

Florida Bar v. Schaub, 618 So. 2d 202 (Fla. 1993).

In this case the State Attorney was found guilty of violating multiple Rules Regulating the Florida Bar as well as the Oath of Attorney during his prosecution of a capital murder defendant. The conviction and sentence of death was reversed based on prosecutorial misconduct which led to the admission of irrelevant and deliberately misleading evidence. Schaub was suspended for thirty days. The conduct which lead to the suspension included the following: improperly eliciting irrelevant testimony from the defense's expert psychiatrist concerning being a "hired gun"; accusing the psychiatrist of charging $600 per hour for a deposition when he had a copy of an itemized bill showing $150 per hour; he insulted the psychiatrist throughout his cross-examination; ignored the trial court's rulings on defense objections; inserted his personal opinions concerning psychiatrists and the insanity defense; elicited improper testimony concerning the average length of confinements for the criminally insane, etc. Although a public reprimand was recommended by the referee, the Supreme Court chose a suspension. Martin v. State Farm Mut. Auto. Ins. Co., 392 So. 2d 11 (Fla. 5th DCA 1980) In an action arising out of a vehicular accident resulting in death of a boy, the circuit court entered judgment, and the plaintiff appealed. The appellate court reversed, in part, because of certain comments that the defense attorney made , including remarks that “if you give (plaintiff) an award, then every time she spends those dollars, she’s going to think about this case, and . . . that’s just too much for her to bear . . . if the truth means nothing . . . we can give (plaintiff) lots of money just like we are selling beef, . . . .” Comments were held improper, inflammatory, and prejudicial. Muhammad v. Toys R Us, Inc., 668 So. 2d 254, 256 (Fla. 1st DCA 1996) A products liability verdict was reversed because the attorney’s comment indicating personal knowledge of the facts and his opinion on the credibility of a witness was found to be reversible error because the curative instruction was inadequate and the question of negligence was a close one.

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Skislak v. Wilson, 472 So. 2d 776 (Fla. 3d DCA 1985) The appellate court found reversible error in plaintiff counsel’s statement during closing argument that it was not the driver but his insurance company that would pay (“he keeps talking about plaintiff having to pay. It is the insurance company that will have to pay.”) As these cases illustrate, caution should be exercised in opening and closing

statements to avoid reversals in what was otherwise a good trial.