If trial is a performance, than the closing arguments is clearly the final act. Attorneys channel their inner-actor and perform for the jury with an eye toward persuading the fact-finders to rule in their client’s favor. Every attorney has a personal style during closings. Some are assertive, some conservative. Many attorneys look for creative ways to convey their points. However, there is significant risk that unusual closings may go too far and jeopardize the case, or worse. Take for example the recent reversal of a $900,000 award due to counsel’s improper attempt to enhance her client’s alleged damages during closing arguments.
A recent case decided by the Eighth Circuit demonstrates the impact of an ill-advised closing. Glister v. Shrub, No. 12-3064 was an employment discrimination lawsuit, in which the plaintiff claimed that her former supervisor touched her inappropriately. When the plaintiff filed a claim with the Iowa Civil Rights Commission, she was fired prompting the suit. At trial, and over the objection of the defendant’s counsel, the plaintiff’s attorney shared with the jury during her closing that she too had endured sexual harassment by a professor when she was a law student. The plaintiff’s attorney described to the jury her regret in failing to report the incident. Counsel stated to the jury that she lacked the strength shown by the plaintiff to stand up to a supervisor. The jury returned a verdict of $900,000.
On appeal the Eight Circuit ordered a new trial due to the improper closing. The court held that counsel’s comments about her own harassment were prejudicial and improperly vouched for the claims made by her client. The court reasoned that plaintiff’s counsel’s “sympathy-arousing personal experience [was] directly aimed at enhancing [the] damages.” The court found that given the amount of the award – particularly the amount of the jury’s award for emotional distress damages – it could not say that “this improper argument did not accomplish the purpose which it was clearly intended to accomplish, namely, the enhancement of damages.”
Attorneys are given considerable leeway during closing statements but clearly an attorney may not push things too far. A good rule of thumb is to stick to the business, nothing personal.