The evidence is in, the jury instructions are done, final trial motions have been made (and appeal points dutifully preserved), and it is time for the final argument, the holy grail of the trial lawyer. After months (if not years) of preparation, it is finally time to just argue, to tell the jurors what you think about the evidence and convince them to agree with your view of what is just and proper, right? Wrong.
Although trial lawyers are allowed significant latitude during the closing arguments, there are rules that must be followed. If you break these rules, your opponent will have the right – if not obligation – to object and disrupt your closing argument, as well as establish to the jury (during your time in the spotlight, no less) that he or she knows the law and the facts better than you. Unfortunately, there is no official list of rules, but here are a few established restrictions:
- The “Golden Rule.” That one should treat others as they wish to be treated is a truth rooted in most religions and cultures. But this lesson is prohibited in the courtroom. Variations of this argument include asking jurors to “put themselves in the shoes of the [plaintiff/defendant]” or “imagine how it must have felt to be wrongfully terminated that way.” These arguments are improper as they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias, rather than on the evidence. See Caudle v. District of Columbia, 707 F.3d 354, 359, 404 U.S. App. D.C. 56 (D.C. Cir. 2013).
- Personal opinions on culpability, witness credibility, or justness of a cause. Rule 3.4(e) of the Model Rules of Professional Conduct prohibits the introduction of the trial lawyer’s personal opinions. Atticus Finch famously violated this rule (among others) in To Kill a Mockingbird, arguing during closing statements that “I have nothing but pity in my heart for the Chief Witness for the State …. But, my pity does not extend so far as to her putting a man’s life at stake.” Then again, Atticus lost.
- “Send a Message.” The jury can’t be asked to “send a message” with regard to awarding or determining compensatory damages. Courts have concluded that this “us-against-them” plea has “no appeal other than to prejudice by pitting ‘the community’ against a nonresident corporation [and] is an improper distraction from the jury’s sworn duty to reach a fair, honest and just verdict.” Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985). The “Send a Message” argument is allowed, however, where it is directed to an award of punitive damages or toward a non-damage issue, such as a finding of negligence. See Koger v. Norfolk S. Ry., No. 1:08-0909, 2010 U.S. Dist. LEXIS 26209, at *13 (S.D. W. Va. Feb. 26, 2010) (citing cases).
- Facts not in the record. You can’t argue facts not in the record or suggest inferences from facts not before the jury; to do so mocks and insults the trial process. Crum v. Ward, 146 W. Va. 421, 434, 122 S.E.2d 18, 26 (1961). Trial lawyers are allowed, however, to include in the final argument facts of “common knowledge or illustrations drawn from common experience, history or literature.” People v. Hill, 17 Cal. 4th 800, 819, 72 Cal. Rptr. 2d 656, 664, 952 P.2d 673, 681 (1998); see Smith v. State, 388 Md. 468, 487, 880 A.2d 288, 299 (2005).
- Inflaming the passions or prejudices of the jury. You can’t “excite and inflame the minds of the jury against one of the litigants [or] appeal to their passions and prejudices.” 2A M.J. ARGUMENT AND CONDUCT OF COUNSEL § 17 (2018). Likewise, counsel in closing argument must not appeal to the jury’s economic fears and passions. Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188, 585 S.E.2d 557 (2003).
- “Opposing Counsel is an idiot.” You must remain objective and not take personal shots at opposing counsel or his/her case. Not only will the court rebuke you for it, but this type of conduct legitimately invites a counterattack that might be more damaging than your initial jab.
A final note on objections: The timeliness of an objection during closing argument is critical, and waiting until the judge has charged the jury (perhaps even out of politeness) is generally viewed as too late. For example, in D’Auria v. Allstate Ins. Co., defense counsel violated nearly every one of the above rules, engaging in character assassinations of the plaintiff, plaintiff’s counsel, and plaintiff’s witnesses, injecting his personal opinions as to the credibility of the witnesses, belittling the plaintiff, appealing to the conscience of the jurors to send a message to the community, and even apologizing to the jury for the plaintiff’s case. 673 So. 2d 147 (Fla Dist. Ct. App. 1996). But because plaintiff’s counsel did not timely object to these arguments, the court refused to order a new trial or take away the jury verdict.