Jury Verdict Reversed Because of Improper Closing Argument
Plaintiff was injured when he collided with a truck which became stuck on the highway when it tried to turn around. The jury found the plaintiff was 25% at fault and awarded him $3.2M (reduced to $2.4M). The Tenth Circuit reversed the jury verdict, however, because of improper closing argument by plaintiff's counsel. Whittenburg v. Werner, Case No. 07-6063, 4/3/09
Plaintiff's counsel asked the jury to imagine that the defendant wrote plaintiff's family a letter telling the family that it was going to do various bad things which would result in plaintiff being badly injured; and that defendant would then improperly defend itself and spend lots of money on its defense so it would not have to pay any money to plaintiff; and in defending itself, it would cast all sorts of aspersions on plaintiff.
The permissible limits of closing argument were exceeded in this case in two principal ways. First, counsel referred extensively to evidence not in the trial record. Second, without apparent provocation or basis in the record for doing so, counsel flooded his argument with abusive references to his opposing party and counsel.
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Before us, the parties fight considerably over the propriety of ever using an imaginary letter as a way to structure a closing argument. But we need not resolve today an abstract debate over the proper form of closing arguments because in this case there is a more pressing problem. Even assuming the possible propriety of the technique generally, the content of this particular imagined letter included a great many facts about Mr. Whittenburg’s children and Werner’s conduct that lacked any basis in the evidence adduced at trial. Counsel’s argument accordingly violated the cardinal rule of closing argument: that counsel must confine comments to evidence in the record and to reasonable inferences from that evidence.
The court found that the closing was objectionable because counsel made up facts that made it sound like the accident was premeditated, impliedly asked the jury to put itself in the family's shoes; and made vituperative attacks on defendants and their counsel.
Counsel’s imagined letter is littered with putative confessions from Werner that it improperly took this case to trial; that it spent vast sums of money to avoid responsibility; that it purposefully mounted an improper and dishonest defense in which it unfairly ridiculed Mr. Whittenburg, presented a one-sided view of the evidence, “forced” and “subjected” Mr. Whittenburg to a trial, and used “smoke and mirrors and half truths” in order “to try and shift the jury’s focus away from the real issue in this case.”
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To imply or argue that the mere act of defending oneself, or the mere act of bringing suit, is reprehensible serves no proper purpose, and for time out of mind it has been the basis for appellate courts ordering new trials.
Further, comments on the wealth of a party are highly prejudicial and can be reversible error. While the comments were not explicit in this regard, the closing mentioned the vast sums of money spent on defense of the case.
The court notes that not all improper closings are reversible error. But in this case, the remarks were not minor aberrations made in passing; they were repeated and emphasized and took up more than half the closing. Further, the trial court took no curative action, either by upholding the objections or by admonishing the jury. A later jury instruction was not sufficient. Finally, the jury award suggested that the closing had a prejudicial effect. This last was a close question. It is the confluence of all three factors which required reversal.
I believe this decision, while not strictly dealing with insurance issues, is important, as it shows what types of closing arguments are not permitted. Certainly, closing argument may be impassioned, but it cannot be based on matters outside the evidence; and it certainly is improper to disparage a party simply because it brought or defended an action. Argument must be confined to the evidence and to matters which can be reasonable inferred from the evidence.
