Closing Argument Requires Reversal

The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff’s counsel during closing argument.

In the words of the Court:  "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff’s children, is fully set forth in the opinion.

The Court also said this:

In light of the confluence of these three factors – the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict – we find ourselves compelled to conclude that this case must be retried. In so concluding, however, we underscore that our decision is not based on any one of these factors singly, but rather their combination after considering the argument as a whole. We also emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are “entitled to have someone speak with eloquence and compassion for their cause.” Draper, 580 F.2d at 95. “Arguments may be forceful, colorful, or dramatic, without constituting reversible error.” Kelly, 84 F.2d at 576. Counsel may “resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.” Stein, supra at § 1.14 (Scope of permissible argument). But one thing they may not do is use closing argument to introduce massive amounts of putative evidence not in the trial record and then proceed to launch broadside attacks on an opposing party’s right to bring suit or defend itself. While always reluctant to reverse the district court in matters concerning trial misconduct, and to burden both that court and the parties with a new trial, our appellate role – a role that compels us to mark and guard the outer boundaries of acceptable trial conduct – does not permit us to sit this one out.

The case is Whittenburg v. Werner Enterprises, Inc., No. 07-6063, 07-6119 (10th Cir. April 3, 2009).  Read it here.

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