Tips For Opening Statements And Closing Arguments

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 necessary to object?  What are the consequences of not objecting?  When is the appropriate time to make a motion for mistrial based on improper argument?  Below you will find some guidance 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 critical that an attorney be familiar with the jurisdiction’s requirements for preserving an issue of improper argument 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).  This requirement stems from “practical necessity and basic fairness in the operation of a judicial system.”  Id. at 455.  Moving for a new trial immediately after an objection is sustained affords the judge “an opportunity to correct [the error] at an early stage of the proceedings” thus avoiding “[d]elay and an unnecessary use of the appellate process.”  Id.  Conversely, not moving for a new trial immediately “results in delay and wastes judicial resources, especially if the error complained of occurs early on in the proceedings.”  Id. at 456.  After an objection is sustained, if no motion for a new trial is made, the judge “is not put on notice that any further action is needed” and will “presume[] that the objecting party has been satisfied and that the error has been cured.”  Id.

When a party does not make a motion for mistrial after an objection is sustained, or when a party does not make any objection at all, the trial court will apply a much more rigorous four-prong standard before granting a new trial.  Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000).  First, the party must establish the comment was improper.  Id. at 1028.  An improper comment goes beyond the facts and evidence presented to the jury and the logical deductions therefrom or inflames the jurors so that their verdict reflects an emotional rather than a logical response.  Id.  Second, the party must establish the comment was harmful.  Id. at 1029.  However, not every improper comment is harmful since “there are other ways to address [a] transgression than reversal of a jury verdict.”  Id.  For a comment to be harmful it must be “so highly prejudicial and of such collective impact” that it “gravely impair[s]” the jury’s ability to fairly decide the case.  Id.  Third, the party must establish the comment was incurable.  Id. at 1030.  Meeting this “extremely difficult” prong requires proof that “curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.”  Id.  Finally, the party must establish the comment “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”  Id.  This category “necessarily must be narrow in scope,” however, and encompasses such comments as “appeals to racial, ethnic, or religious prejudices.”  Id.  Since the Florida Supreme Court notes this route to a new trial should be used only in “very limited situations,” it is best to move for a mistrial immediately after an objection is made.  See id. at 1027.

It would appear that Companioni did not disturb the Florida Supreme Court’s earlier precedent allowing a trial lawyer to request that the court reserve ruling on a timely motion for mistrial.  See Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985). One rationale supporting this ruling is the recognition that the trial court’s superior vantage point allows it to “determine whether it is the best use of judicial resources to let the case go to jury to see if the verdict cures the need for a new trial, or whether it is best to rule on the motion at an earlier stage in the proceedings.” Ricks v. Loyola, 822 So.2d 502, 506-07 (Fla. 2002).  This rule is also intended to prevent a situation where a “litigants who may be unhappy with the jury that has been selected will not be rewarded when they purposely engage in conduct intended to cause a mistrial.” Id. at 507.

In the Eleventh Circuit, “a contemporaneous objection to improper argument is certainly the preferable method of alerting the trial court to the error and preserving such errors for review.”  McWhorter v. City of Birmingham, 906 F.2d 674, 677 (11th Cir. 1990).  The purpose of this preference is twofold.  First, “the requirement fosters judicial economy.  By bringing an error to the trial judge's attention, the court has a chance to correct it on the spot.  Requiring timely objection prohibits counsel from ‘sandbagging’ the court by remaining silent and then, if the result is unsatisfactory, claiming error.”  Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev’d on other grounds, 480 U.S. 1 (1987).  Second, a lawyer may strategically choose not to object to an improper comment.  For example, “an argument that looks highly improper[,] in a cold record may strike counsel as being wholly lacking in effect.”  Id.  “[C]ounsel may think that the improper argument may offend and in effect backfire.”  Id.  Or “the improper argument may open the door to a response that will be of more value than a sustained objection.”  Id.

Yet, even if no objection has been raised, if a party can demonstrate that “the interest of substantial justice is at stake,” a court may still grant a new trial for improper argument.  McWhorter, 906 F.2d at 677.  In these situations, the court will look for an error that is plain, that affects the substantial rights of the party, and that seriously affects the fairness, integrity, or public reputation of a judicial proceeding.  Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir. 2002) (citations omitted).  But, such plain error review “is seldom justified in reviewing argument of counsel in a civil case.”  Woods, 768 F.2d at 1292.  Therefore, in the Eleventh Circuit, as in Florida state courts, it is especially important that a lawyer timely object to any improper statements made by opposing counsel.

Because the issue of improper argument 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.

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

  • De Anza Santa Cruz Mobile Estates Homeowners Ass’n v. De Anza Santa Cruz Mobile Estates, 114 Cal. Rptr. 2d 708 (Cal. Ct. App. 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).
  • DeAngelis v. Harrison, 628 A.2d 77 (Del. 1993) (finding reversible error where defense counsel argued that the plaintiff was exaggerating her injuries and compared the plaintiff winning the case to her winning a lottery ticket).
  • 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.”).
  • 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).
  • 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.”).
  • Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990) (ordering a new trial because plaintiff’s counsel repeatedly told the jury that counsel for the defendant had lied to them and was committing a fraud on the court and jury).
  • McArdle v. Hurley, 51 A.D.3d 741 (N.Y. App. Div. 2008) (finding reversible error where defense counsel argued the plaintiff’s husband, who was receiving pension as a retired police officer on disability pay, “maxed out on the NYPD system” then argued the plaintiff’s claims were “all designed for her to max out in the civil justice system.”).
  • Rodriguez v. N.Y.C. Hous. Auth., 209 A.D.2d 260 (N.Y. App. Div. 1994) (finding reversible error where plaintiff’s counsel called one defense witness a “yahoo,” called employees of the defendant “forgers,” and argued that the defendant’s medical expert was not to be believed because he was compensated for his testimony).
  • Berkowitz v. Marriott Corp., 163 A.D.2d 52 (N.Y. App. Div. 1990) (finding reversible error because plaintiff’s counsel repeatedly depicted the defense’s experts as “hired guns” brought in to “fluff up the case and fill up some time” and accused them of having a previous relationship with defendant’s counsel).
  • Pesek v. Univ. Neurologists Ass’n, Inc., 87 Ohio St. 3d 495 (Ohio 1999) (finding reversible error where defense counsel told the jury it “fits [opposing counsel]’s personality” to lie, threaten witnesses, and suppress evidence then accused opposing counsel of finding any “second-class expert . . . to screw over these good doctors.”).
  • Fehrenbach v. O’Malley, 164 Ohio App. 3d 80 (Ohio Ct. App. 2005) (holding that defense counsel’s calling the plaintiff’s parents shameful parents using their child’s illness and medical complications to collect a $2,000,000 paycheck then saying “[this trial] is not an ATM machine” warranted reversal.
  • 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 the 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).
  • 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).
  • 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).

References to counsel's own experience and personal belief.

  • 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).
  • 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).
  • 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).
  • Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993) (finding reversible error where during closing defense counsel, in discussing testimony given by a chiropractor, said “[i]t’s well known chiropractors will give a permanent impairment rating much quicker than any other physician” and, in discussing the plaintiff’s ability to perform her work as a housekeeper, said “[t]o be quite frank I have made beds myself and I have vacuumed and I don’t find it to be a debilitating experience.”).
  • Reynolds v. Burghezi, 227 A.D.2d 941 (N.Y. App. Div. 1996) (finding reversible error where plaintiff’s attorney accused defendants of illegal conduct, commented on the manner in which bus drivers generally drive and the purpose of “no stopping” signs, discussed irrelevant evidence in an effort to appeal to the jury’s sympathy, and asked the jury to “provide” for the plaintiff).

Comments asking the jury to serve as the conscience of the community.

  • Du Jardin v. City of Oxnard, 38 Cal. App. 4th 174 (Cal. Ct. App. 1995) (finding reversible error where defense counsel for a public entity warned jurors if they found for the plaintiff they would “have to sit back and start counting the public services that w[ould] disappear).
  • 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).
  • Klose v. Coastal Emer. 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).
  • Pleasance v. City of Chicago, 396 Ill. App. 3d 821 (Ill. App. Ct. 2009) (finding reversible error where, during a damages trial, plaintiff’s attorney repeatedly described how the victim was “gunned down by a Chicago police officer” and told the jury “[y]our verdict is going to tell your entire community whether you’re willing to accept a police officer’s willful and wanton killing of a member of our society.”).
  • Texas Emp’rs Ins. Ass’n v. Guerrero, 800 S.W.2d 859 (Tex. App. 1990) (holding that defense counsel’s plea “by golly there comes a time when we have got to stick together as a community” was an impermissible appeal that the jury feel solidarity with the defendant because of race or ethnicity).

Comments in violation of the “Golden Rule.”

  • Cascanet v. Allen, 83 So. 3d 759 (Fla. 5th DCA 2011) (finding reversible error when defense counsel asked the jury if it was fair to burden the young defendant with a substantial damage award and reminded them it was a bad day for her too).
  • 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.”).
  • 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.”).
  • 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).
  • Cohen v. Pollack, 674 So. 2d 805 (Fla. 3d DCA 1996) (holding that plaintiff’s counsel’s suggestion that the jury “measure damages by considering the pain [the plaintiff] endured” was grounds for a new trial).
  • 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).

References to the wealth or poverty of a party.

  • Gordon v. Nall, 379 So.2d 585 (Ala. 1980) (holding that plaintiff’s counsel’s remark that the defendant corporation “doesn’t have a heart, it doesn’t have a soul, it has a board of directors” was so highly prejudicial that reversal was warranted).
  • Intramed, Inc. v. Guider, 93 So. 3d 503 (Fla. 4th DCA 2012) (finding reversible error when plaintiff’s counsel urged the jury to punish the defendant corporation by arguing “[The defendant] will get off cheap.  [The defendant] will sweep it under the rug.  [The defendant] will move on.”).
  • 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.”).
  • Samuels v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010) (finding reversible error when defendant’s counsel’s opening statement revealed to the jury that the defendant earned only $600 per week).
  • 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).
  • Lenz v. Julian, 276 Ill. App. 3d 66 (Ill. Ct. App. 1995) (holding that defense counsel’s statement “I don’t think that it’s fair that [the defendant] for the next 50 years should have to pay” warranted a new trial on the issue of damages).
  • Reetz v. Kinsman Marine Transit Co., 330 N.W.2d 638 (Mich. 1982) (finding reversible error when plaintiff’s counsel remarked that the defendant “can afford the best of everything” and repeatedly made mention of George Steinbrenner III, owner of the New York Yankees and chairman of the board of the defendant’s parent company but not a party to the case, because “the effect of these comments was to create in the minds of the jurors an image of [the defendant] as an unfeeling, powerful corporation controlled by a ruthless millionaire.”).
  • 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).
  • 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.

  • 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).
  • Rush v. Hamdy, 255 Ill. App. 3d 352 (Ill. App. Ct. 1993) (holding that defense counsel’s statement that the defendant’s professional reputation was on the line was an improper appeal to the sympathy of the jury because there was no evidence introduced at trial of the impact a negative verdict would have on the defendant’s professional reputation).
  • 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).
  • Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359 (Mo. Ct. App. 1999) (holding that defense counsel’s mentioning how the plaintiff was nodding off at the wheel warranted reversal because the issue of comparative fault was irrelevant to the issue of whether the design of the vehicle and the placement of the fuel tank contributed to the fuel-fed fire).
  • Green v. Charleston Area Med. Ctr. Inc., 215 W. Va. 628 (W. Va. 2004) (holding that defense counsel’s remark that “[the other doctors] alone knew that the blood being donated to them was coming primarily from homosexuals and drug addicts, the suspected carriers of the new unknown disease [AIDS]” when the record did not support such an allegation was an attempt to divert the jury’s attention from the actual defendants in the case and warranted a mistrial) (emphasis added).

Comments on lack of evidence or failure to call a witness.

  • State Farm Mut. Ins. Co. v. Thorne, 110 So. 3d 66 (Fla. 2d DCA 2013) (reversing and remanding for new trial where plaintiff’s counsel argued the defense did not call a single witness or expert because the defense could not find such evidence).
  • 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).
  • 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).
  • Wall v. Costco Wholesale Corp., 857 So. 2d 975 (Fla. 3d DCA 2003) (finding that defense counsel’s argument that the plaintiffs’ daughter did not testify because she would have proved the plaintiffs were at fault and defense counsel’s accusation that the plaintiffs were committing a fraud on the court and the jury warranted a new trial).
  • 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).
  • 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).
  • Kampe v. Colom, 906 S.W.2d 796 (Mo. Ct. App. 1995) (finding reversible error where defense counsel argued in closing “Dr. Wisner saw [the plaintiff]. . . . Right after they had [the plaintiff] examined by Dr. Wisner, they decided to use Dr. Fayne.  Why didn’t they call Dr. Wisner?  Because Dr. Wisner would not help them in this case.”).
  • Langdon v. Wight, 821 S.W.2d 508 (Mo. Ct. App. 1991) (ordering a new trial when defense counsel misstated the law by arguing in closing that the testimony of the plaintiff’s witness was entitled to less consideration because it was given by video deposition instead of being given live in court).
  • Huff v. Rodriguez, 64 A.D.3d 1221 (N.Y. App. Div. 2009) (finding reversible error where defendant’s attorney argued that the plaintiff did not call any accident reconstruction expert “because his testimony would not support [plaintiff’s] claim that . . . [defendant] caused [the] accident.”) (alteration in original).

Comments regarding pretrial litigation.

  • Christopher v. Florida, 449 F.3d 1360 (11th Cir. 2006) (holding the trial court did not abuse its discretion by ordering a new trial where plaintiff's counsel's unobjected-to improper comments during rebuttal closing were contrary to the trial court’s pretrial grant of qualified immunity to defendants).
  • 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).
  • Emerson Elec. Co. v. Garcia, 623 So. 2d 523 (Fla. 3d DCA 1993) (concluding comments made during the trial—accusing opposing counsel of fraud, hiding evidence, “putting up roadblocks in the discovery of relevant evidence, and picking and choosing the evidence it would produce” as part of discovery—became a feature of the trial and warranted reversal).

Otherwise highly inflammatory comments.

  • Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (condemning comments comparing tobacco industry to Holocaust and slavery).
  • Allstate Ins. Co. v. Marotta, No. 4D11-2574, 2013 WL 2420451 (Fla. 4th DCA June 5, 2013) (finding reversible error when plaintiff’s counsel argued “Allstate denied the undisputed medical evidence. . . . I ask you, is that what it means to be in good hands?,” stated that Allstate’s doctors were “enlisted as part of an effort to manufacture a defense,” and urged the jury to “make Allstate repent.”).
  • 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).
  • Fasani v. Kowlaski, 43 So. 3d 805 (Fla. 3d DCA 2010) (ordering a new trial where plaintiff’s counsel compared plaintiff’s brain injury to a ripped Picasso painting, asked the jury “how much money would you take for me to hit you in the head with a baseball bat as hard as I can?,” and told the jury they needed to punish the defendant corporation for being “arrogant and greedy” in “wanting a pretty elevator” and “kicking [the plaintiff] out on the street like a dog” after he was injured).
  • 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).
  • 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).
  • 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.”).
  • Nemet v. Friedland, 273 Mich. 692 (Mich. 1953) (holding that defense counsel’s statement in closing “this man, like the Jew Shylock, was after the last pound of flesh and last drop of blood” was intended to create prejudice against the Jewish plaintiff and warranted reversal).
  • Johnson v. Amethyst Corp., 120 N.C. App. 529 (N.C. Ct. App. 1995) (finding reversible error where defense counsel’s statements not only disparaged the entire judicial system but also questioned the fairness of female judges presiding over sexual misconduct trials).
  • 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).
  • 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 improper 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 point out to the trial judge the cumulative effect of these arguments, even if an objection originally was overruled, and to move for a mistrial based on the cumulative prejudicial effect of the 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.

 

Topics:  Appeals, Evidence, Jury Trial, Litigation Strategies, Mistrial, Objection Procedures, Witness Statements

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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