Trial lawyers relish the challenge of addressing the jury during closing argument. After laying the groundwork with the introduction of documentary evidence and testimonial admissions, defense counsel finally gets the opportunity to “connect the dots” and persuade the jury of the righteousness of his defense.
Just how far can a defense attorney go before he jeopardizes an otherwise hard fought victory? Where is the line between fair comment and an improperly prejudicial remark?
In Chappotin v. City of New York & Con Ed, the defendant’s main defense was that the plaintiff’s accident did not occur as he alleged and that plaintiff was unworthy of belief. During his summation, defense counsel urged the jury to reject the plaintiff’s story, arguing that “this is a man who has played the system going on 15 years [because he was already on disability]….here’s someone who doesn’t have a concern about getting medical care. He doesn’t have a concern about working…” Even more pointedly, defense counsel warned that “money is a great motivator. Now, Lord knows it’s true, that he’s looking for my money. And I don’t want to give it.”
Procedurally, the plaintiff’s attorney objected to only 2 of the 15 comments that plaintiff claims were beyond the pale of proper advocacy. The trial judge upheld those objections and gave a curative instruction. After the jury rendered a defense verdict, the trial court set the verdict aside based on those comments and an appeal followed.
The First Department reinstated the verdict and found that the defense counsel came close to, but did not overstep, the fine line between acceptable “rhetorical comment” and improperly prejudicial argument. The court also noted that plaintiff’s attorney failed to object at trial to 13 of the 15 comments and thus failed to preserve those objections on appeal.
Trial counsel walks a fine line between winning a bitterly contested trial at all costs and ensuring that the resulting verdict will stand up on appeal. When trying cases, trial counsel must be bold, creative and sometimes uncomfortably direct and aggressive. The hard part is discerning when how far is too far, putting a favorable verdict in jeopardy on appeal.
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