In life, obey the “golden rule;” at trial, avoid it.

By: Peter J. Gallagher (LinkedIn)

It is not often that my fondness for both hip hop and interesting legal decisions collide, but the Appellate Division’s recent decision in Morgan v. Maxwell is one such occasion. The lead defendant in Morgan was Willie Maxwell II, known to his fans as Fetty Wap. And the issue in the case was the so-called golden rule. Not the “do-unto-others” golden rule we teach our children, but the golden rule that prevents attorneys from asking jurors, during closing arguments, to put themselves in the shoes of an injured person and deliver the verdict they would want if they were in that person’s position.

(To be honest, I am not much of a Fetty Wap fan and he settled with plaintiff before the case went to trial so he did not factor much in the appeal. So hip hop and the interesting legal issue are not really colliding here, but please continue reading nonetheless.)

In Morgan, plaintiff worked for defendants – Fetty Wap, his management company, and his record label. There was some disagreement between the parties over plaintiff’s responsibilities, which changed over time, but part of her job eventually involved booking tours and shows for Fetty Wap. A dispute arose between plaintiff and defendants over her compensation in connection with the tours and shows she booked, and plaintiff was eventually fired. A few months later, a story appeared on “Thirty Mile Zone (TMZ), a popular entertainment gossip website,” reporting that “sources close” to defendants told TMZ that plaintiff was fired for misrepresenting herself as Fetty Wap’s booking manager and misappropriating booking fees. A few days later, Fetty Wap’s management company released a statement similar to the reports in the TMZ story.

Plaintiff sued, seeking both commissions she was owed and damages for defamation, the latter stemming from the TMZ story and defendants’ statement. Fetty Wap and his touring company settled with plaintiff, but the record label went to trial. During closing arguments, plaintiff’s counsel made the following statements:

You’re empowered to award [plaintiff] damages for emotional suffering and I implore you to think about how you would feel in her position and to be generous in assigning a dollar value to that pain and suffering. If it’s easier, think about how you would feel if it happened to someone that you care about. Think about someone that you care about and put them in [plaintiff’s] position and think about what it would take to bring that person back.

. . .

I ask you to put yourselves again in [plaintiff’s] shoes and think about what dollar amount would be an appropriate punishment for someone who has done something like this to you or to someone you care about.

Defendant’s counsel immediately moved for a mistrial, arguing that these statements violated the “golden rule doctrine” because they asked jurors to put themselves in plaintiff’s shoes. In response, “the court succinctly stated without explanation, ‘[m]otion is denied.’”

Plaintiff appealed, and the Appellate Division reversed.

The Appellate Division began by observing that counsel normally has “broad latitude” to make closing arguments to a jury, but that a summation appealing to jurors’ emotion and sympathy is improper. This is where the golden rule comes in. As the Appellate Division noted:

The golden rule is based on the principle that you should do unto others as you would wish them to do unto you. It is improper for an attorney to invoke this rule because it tends to encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. A golden rule argument suggests to jurors that they should adopt what they would want as compensation for injury, pain and suffering.

(citations omitted). The Appellate Division had little trouble concluding that plaintiff’s counsel’s urging of the jury to “put yourselves in [plaintiff’s] shoes” and to “think about what dollar amount would be an appropriate punishment for someone who has done something like this to you or to someone you care about” was improper under this standard. While the trial court could have issued a “clear, cautionary instruction to mitigate the prejudicial effect on the jurors,” it did not do so. Therefore, because of counsel’s improper invocation of the golden rule during closing, the Appellate Division was compelled to vacate the jury’s award – more than $1 million to plaintiff – and remand for a new trial.

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