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Civil Justice Memo
No. 38 August 1999


The Abuse of Opening Statements and Closing Arguments in Civil Litigation

Introduction

“If the gloves don’t fit, you must acquit.” Johnny Cochran’s outrageous statements to the jury in his closing argument distracted the O. J. Simpson jury from the strong evidence against his client, and helped Mr. Simpson win an acquittal. Similarly outrageous jury arguments are increasingly common in civil litigation.

American trial procedure provides attorneys with two opportunities to speak directly to juries, opening statements and closing arguments. The purpose of opening statements is to allow attorneys to give juries a roadmap of what the attorneys intend to prove during trial. Closing arguments, meanwhile, allow attorneys to summarize the evidence they have presented at trial, and emphasize important points the jury may have missed or forgotten.

Theoretically, trial judges have broad discretion in policing jury arguments.2  Attorneys are traditionally barred from introducing inadmissible materials during opening statements and closing arguments, engaging in inflammatory rhetoric, misstating the law, and otherwise abusing their prerogatives.3

In practice, however, courts have been quite deferential to attorneys, and generally have allowed them to go beyond appropriate argument to the jury. Until recently, experienced attorneys rarely bothered to object to all but the most outlandish statements made by opposing counsel; they knew that judges were unlikely to sustain their objections, and that the interruption would appear rude to the jury.

There are two primary reasons why judges have allowed parties to abuse opening statements and closing arguments. One is ideological, the other is practical.

The ideological explanation is the popularity of the theory, held explicitly or implicitly by many judges, lawyers and law professors, that the purpose of civil jury trials is not to ensure that current law is correctly applied to the facts. Rather, juries are seen as a check on legal rigidity and are expected to be indicators of the direction of the law’s evolution. Juries therefore are not expected to strictly apply the facts to the law in all circumstances. Instead, juries are expected to base their verdicts on “extralegal values” or “their sense of justice.”5  Judges have therefore been inclined to acquiesce to attorneys’ unduly emotional appeals in jury argument, even when the attorneys have been technically in violation of the rules of proper argument.

The practical explanation for lack of supervision of jury argument is that the issue of the abuse of jury argument has simply not attracted the attention of the legal establishment. The issue of proper jury argument receives little attention in law schools. The law regarding opening statements and closing arguments is rarely taught as part of either evidence or civil procedure. Instead, material about opening statements and closing arguments is usually relegated to trial advocacy courses, if it is covered at all. These courses, and the largely adjunct faculty who teach them, focus on winning techniques, not the rules. Not surprisingly, the academic literature on appropriate jury argument is sparse.6 

Nevertheless, over the last decade or so judges have become more willing to police jury argument. Part of the reason for this shift in behavior is the increasing interest in what Peter Huber calls the “rule of fact”—ensuring legal decisions actually conform to the underlying evidence. Interest in the rule of fact has led to more liberal rules for the granting of summary judgment, a crackdown on junk science, and it seems, a nascent crackdown on attorneys who make illicit, unfairly prejudicial arguments to the jury.

Equally important, attorneys have simply exhausted the judiciary’s patience. As the stakes of civil litigation have grown, attorneys increasingly are tempted to stretch the boundaries of acceptable argument, perhaps to the breaking point. One commentator finds that “final argument has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors’ sympathies and prejudices.”7  This attorney notes that “the final argument of a trial is often viewed as a legal battleground in which almost anything goes.”8 

A representative example of this “anything goes” mentality among attorneys occurred in a personal injury lawsuit filed by a plaintiff injured in an accident at Disney World.9 In closing arguments, the plaintiff’s attorney labeled one defense witness a “good soldier” and another a “joker.” Counsel for plaintiff also accused the defendant several times of having “ripped off the plaintiff’s thumb,” and characterized the defendant as “some nickel and dime carnival” throwing “pixie dust” in an attempt to mislead the jury. The jurors were told that the defendant’s attorney thought they were “fools” and “idiots.”

Other attorneys engage in somewhat more subtle manipulation of jury sentiment. Two partners of well-known litigator John O’Quinn put the matter bluntly. To win a breast implant case, they argue, “you must prove that the manufacturers are evil. They are not good people who make bad decisions, not good people who just did not know, but just plain evil.”10  Such attitudes can lead to questionable jury argument. In Laas v. Dow Corning, for example, O’Quinn analogized the defendants, Dow Corning and its parent, Dow Chemical, to murderers and cigarette companies.11  In his closing argument, O’Quinn asked the jury to ignore the scientific evidence presented by the defendants because it is just “Dow investigating Dow.” He suggested too, that the jury instead rely on “common sense, circumstantial evidence,” and post hoc ergo propter hoc reasoning. Slyly shifting the burden of proof to the defendants, O’Quinn added: “If science today has proven this product to be safe, Dow would still be selling it, wouldn’t they?”12 

Those tactics proved very effective. The Laas jury awarded $5.2 million dollars to the plaintiff, Gladys Laas, for injuries allegedly caused by her breast implants. The PBS television program “Frontline” asked two of the jurors in Laas how the jury reached its verdict. The transcript of the episode reveals that the jurors ignored the most significant piece of scientific evidence that existed at the time of the trial, and illicitly shifted the burden of proof to the defendants to disprove causation.13 

Fortunately, judges who choose to crack down on improper jury arguments have the tools to do so.

Remedies

Traditional remedies for the abuse of jury argument include “invited response,” limiting instructions, and in extreme cases, granting mistrials. More recently, courts have been issuing pre-trial orders in limine banning the attorneys from raising certain issues, and exercising direct judicial control over jury argument.

A. Invited Response

One traditional remedy for improper opening statements or closing arguments is to give the other party leeway in responding in kind, an approach known as invited response. The remedy has a long history of acceptance—the Supreme Court validated invited response as early as 1891,14  and reaffirmed its approval in 1958.15 

Invited response seems appropriate when a violation is minor, but it must be used with care. As the Supreme Court has noted, invited response may “inevitably exacerbate the tensions inherent in the adversary process.”16  A Florida appellate court found in one case a:

disgraceful display of unprofessional conduct [by both sides of this personal injury case] which was much more appropriate to a prize fight. . . . It is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which the parties may fight it out on unseemly terms of their own choosing, and then, on the grounds that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious.17 

An additional problem with invited response is that the parties may not be equally capable of taking advantage of the leeway given to them by the trial judge. When a case involves an underdog, such as an individual plaintiff suing a large corporation, it is unlikely that the defendant’s attorney will be able to effectively counter unfairly prejudicial remarks made by the plaintiff’s attorney.

B. Limiting Instructions

Another traditional remedy to improper opening statements and closing arguments is for the judge to provide limiting instructions to the jury, requesting that they ignore the offending remarks.18  Unfortunately, in this as in other contexts, the effectiveness of limiting instructions is dubious.19  Even assuming jurors understand a judge’s instruction to ignore a remark, jurors find it extremely difficult to ignore a remark they have already heard.20  As one scholar notes, providing limiting instructions to try to correct improper attorney statements is like “closing the barn door after the horses are out.”21 

C. Granting a Mistrial

Trial courts have traditionally been very reluctant to declare a mistrial simply because in the heat of battle an attorney violated the rules governing opening statements and closing arguments. Appellate courts, operating under a conservative abuse of discretion standard, have been even more hesitant to reverse a trial court’s denial of a motion for a mistrial or a new trial because of an illicit comment made by the other side.22

As attorney misbehavior has increased, however, mistrials have become far more common, though still the exception. Florida courts seem particularly willing to grant mistrials, either initially or on appeal.23  A state judge in Oregon received a great deal of attention a few years ago when he vacated a $1.5 million plaintiff’s verdict in a breast implant case and ordered a new trial because of perceived abuses in jury argument by the plaintiff’s attorneys.24 

D. Granting Motions in Limine

In recent times, some courts have tried to avoid the perils of invited response, limiting instructions, and mistrials, by attempting to control the content of jury argument in advance by granting pre-trial motions in limine.25  Such motions are now granted even when the arguments in question should be excluded on objection as improper argument without an in limine order.26 

Orders in limine prohibiting certain specified improper arguments to the jury are significant for three reasons. First, repeated violations of such an order are substantially more likely to result in a finding of contempt of court than mere repeated violations of the rules governing opening statements and closing arguments. Also, violations of an order in limine may lead judges to refer the offending attorney to the state bar for disciplinary action.27 

Second, trial practice manuals and experienced attorneys generally advise litigants to refrain from objecting to improper remarks during opening statements and closing arguments to avoid the appearance of rudeness.28  The objecting attorney will look much better to the jury if the judge has granted an order in limine banning the offending statement. Instead of merely objecting, the attorney can say, “Objection, your honor, counsel is violating your order barring him from discussing this issue.” Instead of seeming rude, if the objection is granted the attorney will demonstrate to the jury that the other side is not “playing by the rules.”29 

Third, violations of an order in limine make a court more likely to declare a mistrial, or grant a reversal on appeal, than if no such order was issued. Courts seem to be far less reluctant to go to the extreme of granting a new trial when an in limine order was repeatedly violated than if the rules of jury argument were violated in the absence of such an order.

For example, in an Illinois libel case the plaintiff’s attorney “repeatedly violated the trial court’s in limine orders barring any mention of an alleged conversation between plaintiff and his deceased daughter.”30  On appeal from a plaintiff’s jury verdict, the Illinois Court of Appeals found that “plaintiff’s flagrant violations of the trial court’s in limine orders deprived defendants of a fair trial.” The court therefore vacated the judgment and ordered a new trial.31  The appellate court chastised the trial court for not granting the defendant’s motion for a new trial, finding that the lower court’s reticence constituted an abuse of discretion.32 

E. Direct Judicial Control of Jury Argument

Some courts have stopped trying to indirectly regulate the content of opening statements and closing arguments and have taken matters into their own hands. Federal judges in Connecticut are particularly assertive in policing opening statements. The federal district court for the District of Connecticut has adopted the following rule: “Opening Statements. Opening statements by counsel in jury trials are not allowed, except on application made to the presiding judge out of the hearing of the jury.”33 

Most Connecticut federal judges allow opening statements on application from a party if opposing counsel does not object. However, the judges typically limit the time and content of the opening statements, interrupting counsel if necessary.34  Some judges require written opening remarks be submitted in advance for approval of content. After reviewing the opening statement, the judge may allow counsel to read the opening statement as submitted.35  The judge also may restrict counsel to reading appropriate sections of the opening statement.36 

Judges have hesitated to apply similar policies to closing arguments, perhaps because of doubts as to whether such a policy would be constitutionally permissible. The Second Circuit has twice held that there is no federal constitutional right to an opening statement in a civil case,37  so clearly Connecticut federal judges can place some reasonable restrictions on opening statements. In fact, the denial of opening statements in short and simple cases is relatively common.38 

However, several state courts have held that civil litigants have a federal or state constitutional right to a final argument,39  and it is not clear whether direct judicial intervention into the content of a closing argument would be permissible. In this author’s view, requiring an attorney to present to the judge the text, or at least an outline, of his closing argument to ensure that it complies with well-established rules of argument would not violate any right to present a closing argument.

Conclusion

As we have seen, judges have traditionally been reluctant to crack down on the abuse of arguments to the jury. Fortunately, judicial attitudes are changing, albeit slowly, as more judges realize that the abuses of opening statements and closing arguments are not isolated incidents, but part of a disturbing pattern of misconduct by overzealous attorneys.

Unfortunately, little research has been conducted on creative ways in which judges are controlling abusive jury argument. The author would welcome further examples from readers of this Civil Justice Memo.

As discussed above, declaring mistrials, issuing orders in limine, and directly controlling jury argument are all appropriate methods of controlling attorney misconduct, and each should be used more often. As the Texas Court of Appeals has declared, “trial judges have a responsibility to protect litigants and witnesses and parties, who are forced against their will in court trials, from unnecessary abuse at the hands of enthusiastic and too energetic counsel. . . . It is their duty to protect their courts from the contempt of counsel who flagrantly violate the rules of court.”40 

Endnotes

 1 E-Mail: dbernste@wpgate.gmu.edu. Paul Pepper, GMUSL Class of 1998, provided valuable research assistance for this article. An earlier version of this article was published in Court Review: Journal of the American Judges’ Association, Fall/Winter 1997, at 16.

 2 Peter C. Langarias, Effective Closing Argument, §1.04 (1989); National Conference of State Trial Judges of the Judicial Administration Division of the ABA and the National Judicial College, The Judge’s Book 277 (2d ed. 1994).

 Technically, opening statements are not arguments, but “some courts use the terms ‘opening statement’ and ‘opening argument’ interchangeably.” Michael J. Ahlen, Opening Statements in Jury Trials: What Are the Legal Limits?, 71 N.D. L. Rev. 701, 710 (1995). In this article, the phrase “jury argument” encompasses both opening statements and closing arguments.

 3 Various courts have held that improper remarks during opening statements and closing arguments include:

  • Addressing a juror by name;
  • Stressing irrelevant facts or issues;
  • Attacking a party, counsel or a witness;
  • Making disparaging comments;
  • Stating a fact in opening statement that will not be proven;
  • Instructing jurors on the law;
  • Misstating the law;
  • Expressing a personal belief in the merits of the client’s case;
  • Making prejudicial or inflammatory remarks;
  • Mentioning settlement discussions;
  • Discussing subsequent repairs; and
  • Mentioning the wealth or poverty of a  party.
  • Kent Sinclair, Trial Handbook § 3.08, 5.05 (2d ed. 1990).

 4 Michael J. Saks, Blaming the Jury, 75 Geo. L. J. 693, 704 (1986); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1285-86 (1952).

 5 Marc Galanter, The Regulatory Function of the Civil Jury, in Verdict: Assessing the Civil Jury System 88-90 (Robert E. Litan ed., 1993); Neal R. Feigenson, The Rhetoric of Torts: How Advocates Help Jurors Think About Causation, Reasonableness, and Responsibility, 47 Hastings L.J. 61, 160-61 (1995).

 6 On the rare occasions when evidence professors write about jury argument, they tend to focus on strategy, not the rules. See, e.g., Ronald L. Carlson & Edward J. Imwinkelried, The Three Types of Closing Arguments, 18 Am. J. Trial Advoc. 115 (1994).

 7 Bradley R. Johnson, Closing Argument: Boom to the Skilled, Bust to the Overzealous, Fla. B. J., May 1995, at 12.

 8 Id.

 9 Walt Disney World Company v. Blalock, 640 So. 2d 1156, 1157 (Fla. 5th Dist. App. 1994).

 10 Thomas W. Pirtle & Richard N. Laminack, Winning a Breast Implant Case: The Plaintiff’s Point of View, Med. Leg. Aspects Breast Implants, Oct. 1997, at 4, quoted in David E. Bernstein, The Breast Implant Fiasco, 87 Cal. L. Rev. 457, 495 (1999).

 11 See Plaintiff’s Opening Statement, Tr. at 25, Laas v. Dow Corning Corp., No. 93-04266 (Tex. Harris Cty. Dist. Ct. Nov. 21, 1994) (analogizing defendants’ attorneys to a criminal defense attorney who will “talk about anything except the fact that [his client] coldbloodedly murdered someone else”); id. at 33 (stating that just as the defendants’ attorneys will argue that there is no proof that implants harmed the plaintiffs, cigarette companies argue that their product does not cause lung cancer).

 12 Plaintiffs’ Closing Argument, Laas v. Dow Corning Corp., No. 93-04266 (Tex. Harris Cty. Dist. Ct. Nov. 21, 1994), available at http://www.boston.com/wgbh/pages/frontline/frontline.html.

 13 See Bernstein, supra note 10, at 496-97.

 14 Crumpton v. United States, 138 U.S. 361 (1891).

 15 Lawn v. United States, 355 U.S. 339 (1958).

 16 United States v. Young, 470 U.S. 1, 21 (1985).

 17 Borden, Inc. v. Young, 479 So. 2d 850, 850-51 (Fla. App. 1985).

 18 United States v. Young, 470 U.S. 1, 22-23 (1985); Hunter v. Chicago & North Western Transp., 558 N.E.2d 216, 224 (Ill. App. Ct. 1990).

 19 Newton N. Minow and Peter David Blanck, Welcoming Remarks and Statement of the Issues, 68 Ind. L.J. 1033, 1035 (1993).

 20 Id.

 21 Ahlen, supra note 2, at 104.

 22 Id.

 23 See, e.g., Baptist Hospital v. Rawson, 674 So. 2d 777 (Fla. 1st Dist. Ct. App. 1996); Norman v. Gloria Farms, 668 So. 2d 1016 (Fla. 4th Dist. Ct. App. 1996); Muhammad v. Toys “R” Us, 668 So. 2d 254 (Fla. 1st Dist. Ct. App. 1996); Johnson, supra note 7; John W. Reis, Improper Jury Argument: Guilding the Lustre of the Golden Rule, Fla. B.J., Jan. 1995, at 60.

 24 Shaw v. Bristol-Myers Squibb Co., No. 9312-08347 (Ore. Cir. Ct. April 22, 1996).

 25 Motions in limine are submitted in writing before the trial begins on specific evidentiary matters. They are authorized by the inherent power of the trial court to admit or exclude evidence in the interests of a fair trial. Robert G. Johnson & Thomas P. Hogans, Motions In Limine: Use and Consequences in Illinois, 26 J. Marshall L. Rev. 305 (1993).

 26 See, e.g., Braun v. Lorillard, Inc., 1996 WL 14027 (N.D. Ill. 1996).

 27 Michael Sean Quinn, Closing Arguments in Insurance Fraud Cases, 23 Tort & Ins. L.J. 744, 768 (1988). See, e.g., Bellsouth Human Resources Administration, Inc. v. Colatarci & Hylton, 641 So. 2d 427 (Fla. App. 1994). The Bellsouth court warned attorneys, “when we observe conduct which we think should be reported to the bar, we do so by letter, a fact which we point out here lest anyone think the only time we take that step is when it appears in an opinion.” Id. at 430 n. 1.

 28 See, e.g., Robert E. Keeton, Trial Tactics and Methods § 7.12 (2d ed. 1973). Professor Ahlen notes that “the mere act of objecting may also highlight the improper remark for the jury.” Ahlen, supra note 2, at 702.

 29 Professor Ahlen suggests that a sustained objection followed by an admonition or forced retraction has a very negative impact on an attorney’s case. Ahlen, supra note 2, at 702.

 30 Kutchins v. Berg, 638 N.E.2d 673 (Ill. App. Ct. 1994).

 31 Id. at 675.

 32 Id. at 676.

 33 Rules of the United States District Court for the District of Connecticut, Local Rules of Civil Procedure, Rule 12 (d).

 34 Interview with Robin Tabora, Deputy Clerk, Federal District Court for the District of Connecticut (July 19, 1996).

 35 Id.

 36 Id.

 37 United States v. Salovitz, 701 F. 2d 17, 21 (2d Cir. 1983) (“We believe that an opening statement by the defendant is not such a guaranteed right, and that the making and timing of opening statements can be left constitutionally to the informed discretion of the trial judge.”); United States v. 5 Cases, 179 F.2d 519, 522 (2d Cir. 1950) (holding in a civil case that “opening is merely a privilege”).

 38 Salovitz, 701 F.2d at 21.

 39 Fuhrman v. Fuhrman, 254 N.W.2d 97 (N.D. 1977); Aladdin Oil Burner Corp. v. Morton, 187 A. 350 (N.J. 1936), Moore v. Moore, 135 A.2d 643 (D.C. 1957); Lewis v. Federal Services Discount Corp., 170 A.2d 235 (D.C. 1961). Nestor v. George, 46 A.2d 469 (Penn. 1946); Sperry v. Berry, 503 A.2d 409 (Pa. Super. Ct. 1985); cf. Langarias, supra note 2, at § 1.02 (“counsel have an absolute right to present closing arguments in both criminal and civil jury trials.”); but see Korbelik v. Staschke, 596 N.E.2d 805 (Ill. App. 1992) (stating oral argument in a civil non-jury trial is a privilege in Illinois); Jacob A. Stein, Closing Argument § 3 (1985, Supp. 1987) (“Argument of counsel would appear to be more jealously protected in criminal than in civil cases, especially nonjury civil cases, where argument of counsel has often been referred to not as a right, but as a privilege within the trial court’s discretion.”).

 40 Texas Employers’ Insurance Association v. Guerrero, 800 S.W.2d 859, 868 (Tex. Ct. App. 1990).

 


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David E. Bernstein is an associate professor at the George Mason University School of Law. His most recent article, “The Breast Implant Fiasco,” was published in the spring volume of the California Law Review. He has been widely quoted on civil justice issues in professional journals and in the popular media.[1]

 


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