By Dawn Solowey
A great closing argument weaves the trial evidence into a compelling, memorable narrative. But trial counsel must also beware of improper argument, which can prove very costly, as shown by the recent Eighth Circuit decision in Gilster v. Primebank.
The “Hard-Fought Trial”
In Gilster, the Plaintiff alleged that her boss at an Iowa bank had sexually harassed her and retaliated against her for reporting it. The six-day trial featured sharply divergent evidence as to both fault and the cause and extent of Plaintiff’s alleged emotional damages. The jury returned a Plaintiff’s verdict of over $900,000, which the district court later reduced to more than $428,000.
The Court’s Decision That the Argument Was Improper and Warranted a New Trial.
After the employer appealed, the Eighth Circuit vacated the verdict, and remanded for new trial.
In her closing, the Plaintiff’s counsel, while arguing that her client showed strength in reporting the sexual harassment, told the jury that she herself had suffered, but failed to report, sexual harassment as a law student. Defense counsel objected, but was overruled. The Court of Appeals held that counsel’s reference to her own experience improperly argued facts not in evidence, to enhance the plaintiff’s credibility.
The Appellate Court held that “improper vouching permeated counsel’s rebuttal argument,” including when counsel assured the jury that her client had testified truthfully about past abuse and emotional distress. The Court also held that the counsel’s reference to other clients’ experiences was improper argument about evidence not in the record.
Finally, the Court held that counsel’s statement “giving” the jury “responsibility for correcting injustices” was improper argument, akin to a prosecutor urging a jury in a criminal case to be “the conscience of the community.”
In granting a new trial, the Court of Appeals reasoned that the improper remarks were not passing comments, but reflected a “deliberate strategic choice to make emotionally-charged comments” when they would carry the greatest emotional impact and opposing counsel could not respond. The Court noted that the district court’s overruling of defense counsel’s objection signaled to jurors that it was appropriate to consider the comments in deliberations, and that the court’s general, standard instruction that argument was not evidence did not cure the error. The Appellate Court held that the size of the award was consistent with counsel’s argument having caused prejudice, since “[c]ounsel’s vouching and sympathy-arousing personal experience were directly aimed at enhancing these damages.” Finally, the Court held that the fact that it was a close case was relevant, noting that the “hard-fought trial warranted hard-hitting, but not improper, closing argument.”
The Court concluded that this was the “relatively rare case” where Defendants showed sufficient prejudice caused by “plainly unwarranted and clearly injurious” argument, requiring a new trial.
This case presents a few key lessons for trial lawyers and their clients:
- Stick to the Evidence: As the Court held, “The cardinal rule of closing argument is that counsel must confine comments to evidence in the record and to reasonable inferences from that evidence.” Argument that strays from that rule is more likely to be improper.
- Know and Follow the Rules: Before trial, review the rules in the applicable jurisdiction about improper argument. The Gilster opinion relied on the Iowa professional conduct rules, which forbid counsel to “allude to any matter . . . that will not be supported by admissible evidence, assert personal knowledge of facts in issue . . . or state a personal opinion as to the justness of a cause, [or] the credibility of a witness.”
- Prepare the Argument in Advance: Counsel is less likely to veer into forbidden territory with a carefully written draft and time to think it through. Trial counsel may also consider having another trial team member, the client’s in-house counsel, or another trusted lawyer vet the draft closing for any issues.
- Get Your Objection on the Record: In Gilster, defense counsel was quick-thinking, politely interjecting “Excuse me, counsel” during the closing, and then objecting on the record to the improper argument. It can be awkward to object during closing, and there are risks that the interruption will annoy the jury or court, or draw attention to the improper argument. But if the argument is truly improper and prejudicial, a timely on-the-record objection is important for preserving the issue for appeal.
Bottom line? As the Eighth Circuit held, “[W]hen a lawyer departs from the path of legitimate argument, she does so at her own peril and that of her client.”
For more on this or other employment law issues, please contact the author or your Seyfarth attorney.