Closing Statements Can Be “Improbable, Perhaps Illogical, Erroneous Or Even Absurd,” But Still Not Require A New Trial

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Counsel is given wide latitude when making a closing argument to a jury. Perhaps not as wide as Lionel Hutz might be used to, but wide nonetheless. The recent Appellate Division decision in Campanelli v. Patel is a good example.

In Campanelli, plaintiff was injured in a car crash. Defendant, the other driver, called a board certified orthopedic surgeon  as her expert. The doctor testified that he spent 20% of his time preparing expert reports for litigation and that virtually all of these were for the defense. During closing arguments, defendant’s counsel, who gave his closing first, told the jury that plaintiff’s counsel was going to “tell them that all [the defense expert] does is testify for the defense and all he does is find no injuries,” but that it was up to the jury to decide whether the expert was telling the truth or “lying to you in order to keep that work.” Defendant’s counsel turned out to be clairvoyant, and then some.

During his closing argument, plaintiff’s counsel told the jury: that the expert’s client was, not defendant, but the “defense industry;” that the expert was “not a credible witness although he is smooth as silk;” that the expert “just sits there and butter wouldn’t melt in his mouth and every question you have for him he has an answer;” that he was a “pro,” a “professional testifier,” and a “smoothie;” that he was a “defense doctor;” that he played a “shell game” and a “show game;” and that he was “there for the sole purpose of protecting his industry in the defense area and protecting the defendants in order to do that.” He urged the jury not to “let that practice fool you,” and not to “fall into the trap.” The trial judge interrupted plaintiff during his closing and brought counsel to sidebar, where defendant’s counsel objected to the comments plaintiff’s counsel made to the jury. The trial court, without objection from either counsel, instructed the jury that “the comments of plaintiff’s counsel have gone far beyond what is acceptable,” and that the jury should disregard those comments.

After deliberations, the jury returned a verdict in plaintiff’s favor on liability and damages. Defendant moved for a new trial based, primarily, on plaintiff’s counsel’s comments during his closing. The motion was denied. The trial court observed that plaintiff’s counsel’s comments “clearly went above and beyond the bounds of acceptable advocacy,” but that it was “not persuaded that the jury’s verdict [was] against the weight of credible evidence, such that the only explanation of the jury’s verdict could lie with the comments of counsel during summation.” Defendant appealed.

On appeal, the Appellate Division explained that it used the same standard on appeal that the trial court used on the motion for new trial — the jury’s verdict would only be overturned if there was a “miscarriage under the law.” As it relates to closing statements, the Appellate Division noted that counsel is “generally allowed broad latitude in summation,” and “may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd.” But, counsel cannot “use disparaging language tending to discredit the opposing party, or witness, or accuse a party’s attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence.”

In Campanelli, the Appellate Division held that counsel’s comments about the defense expert were “disparaging and implied that [the expert] misled the jury.” But, it held that the “prompt curative instruction” given to the jury by the trial court “ameliorate[d] the effect” of the improper comments. As the Appellate Division noted: “The  adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached.” In Campanelli, the Appellate Division determined that the curative instruction was “clear and to the point” — the trial court told the jury that the comments were improper and should be ignored — and that it stopped plaintiff’s counsel’s summation immediately to give the instruction. Based on this, and its review of the evidence presented at trial, the Appellate Division concluded that plaintiff’s counsel’s comments during his closing argument did not lead to a verdict that could not otherwise be justly reached. Accordingly, the jury’s verdict was allowed to stand.

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