By Michael Hoenig - New York Law
Journal - January 20, 2017
On Dec. 28, 2016, the New York Appellate Division, Second Department,
issued its pithy, pungent decision in People v. Brisco,1
reversing a criminal conviction for improprieties during the
prosecutor's summation. The opinion bristles against the
cumulative effect of inflammatory comments such as: directly
attacking defense counsel's role and his integrity; raising a
hypothetical that bore no relation to the evidence in the case
and then suggesting what defense counsel would have argued with
respect to that irrelevant hypothetical; improperly referencing
facts not in evidence in order to call for speculation by the
jury; misstating critical testimony by a defense witness,
alleging that certain facts were "undisputed" when in fact they
were disputed; improperly appealing to the jury's sympathy and
generalized fear of crime by asserting defendant possessed a
loaded gun and, because police officers in the area "did their
jobs," fortunately, nothing happened; and advising the jury,
"now it's your turn to uphold your oaths as jurors and do your
jobs" by finding the defendant guilty (a so-called "safe
streets" argument considered inflammatory and disapproved by the
courts); plus other remarks.
That courts exercise heightened vigilance in criminal cases when
prosecutorial arguments cross the lines of prejudice should not
be surprising. In criminal cases the stakes are incarceration
and a hounding stigma beyond the jail term. Prosecutors are held
to a high standard, for the jury may give special weight to
their arguments. Also, as the U.S. Supreme Court said in
Berger v. United States,2the U.S. attorney is
"the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done." Thus, "while
[the prosecutor] may strike hard blows, he is not at liberty to
strike foul ones."3
The strong court response in the
People v. Brisco criminal case had me wondering
whether courts generally tend to exercise the same degree of
vigilance and firepower in civil trials.4 That, in
turn, motivated my renewed review of literature and illustrative
case law regarding improper argument. It seems that, while ample
lip service is paid by courts to established high-road
principles, each case, so to speak, sits on its own bottom and
outcomes are not predictable with certainty. It may be best to
again sensitize readers to pitfalls and tensions in this area.
Some resources by writers providing guidance are cited in the
Challenging problems confront civil trial judges in how to police
misconduct consisting of counsel's improper argument,
intentional "slips" of the tongue regarding inappropriate
subjects or injection of prejudicial matter into the case. The
judge's dilemma is often tinged by practical realities inhering
in the process. Trial advocacy, after all, involves different
attorney styles—some of them quite aggressive. Rhetoric plainly
is the lifeblood of the communicative art. Persuasion is the
advocate's clear goal. Winning the hearts and minds of the
jurors is the name of the game.
Policing advocative misconduct, therefore, is made difficult by the very
nature of the trial process which is adversarial, disputative
and contentious. Since the war is fought largely on rhetorical
terrain and major weapons inevitably include words, tone, facial
expressions, body language, verbal projection of ideas, imagery
and arousal of juror emotions, the judge's task is concededly
onerous. The court strives to let the lawyers' innate skills and
intellect play themselves out—an objective naturally
inconsistent with acting as a muzzle. Yet, the judge also must
guard against unfairness and prejudice creeping into the
Sometimes this is a delicate balancing act. There are few clear rules on
when and how to police effectively against loose lips at all
times. And, when serious infractions do occur, judges are
reluctant to declare mistrials, thereby expunging efforts
already expended in the trial. Likewise, some judges are loath
to penalize the litigant for the misconduct of his counsel.
Conventional wisdom often suggests, therefore, that judges
merely give some sort of "curative" instruction to the jury to
disregard the offensive remarks. But do such so-called
"curative" instructions really do the job? Or do they call more
attention to the indiscretion? And, if mere "slap-on-the-wrist,"
curative instructions are to be the dominant measure of judicial
response, are not wrongdoers actually enticed into engaging in
prejudicial misbehavior? If the "cure" is ineffective and
inflammatory arguments help errant counsel win the case, is
wrongdoing sufficiently deterred? Are the courts sending the
right signal to adventurous counsel who may be willing to cross
lines of decency and propriety?
The problem is perhaps more aggravated for appellate judges. They must
labor upon a "cold" record in which the black-and-white
transcript frequently does not convey the odium that unfolded in
flesh-and-blood terms before the jury. Thus, some appellate
courts may tend to be extremely deferential to the trial court's
"discretion" in the matter.6 After
all, the trial judge had a first-hand view of the prejudicial
impact upon the jury and, if he or she excused the misdeed or
gave a "curative" admonition to disregard, some will reason,
that must mean that the prejudice either was not fatal or was
"cured." Appellate judges also are subject to the natural
inertia against wasting judicial resources by ordering another
Thus, time and again, in "improper argument" cases we see appellate courts
bristling against the clearly abusive remarks but nevertheless
condoning the result below under time-worn slogans such as:
Litigants are entitled to a "fair" trial—not a "perfect" trial;
or that the failure to police the improper remarks amounted to
"harmless error"; or that offending counsel should not have
engaged in such "emotional" or "colorful advocacy" but that the
length and complexity of the proceedings justify the refusal to
grant a new trial; or that jury instructions amply advised the
jurors that "counsel's argument is not evidence." Unfortunately,
these rationalizations—expedient as they may be—do not yield
wholly satisfactory results.
An opinion by the Sixth Circuit suggests that a more vigorous judicial
response may be required against advocative misconduct and
improper argument. The case is Igo v. Coachmen Industries,7 a
product claim arising from a motor home accident in which
plaintiff's steering wheel came off in his hands while the
vehicle was proceeding on a highway. The driver was able to
bring the vehicle to a stop but, years later, sued for damage to
the motor home plus mental and emotional injuries due to a
post-traumatic stress disorder. The defendant admitted
liability. The case was tried to a jury which returned a
$325,000 verdict including mental and emotional injuries
sustained by plaintiff and his wife.
On appeal, defendant complained about improper remarks made in the
attorney's opening statement, summation and via
cross-examination about a recall campaign the defendant had
conducted. Since defendant admitted liability, the trial judge
had granted its motion in limine to exclude any evidence
pertaining to the recall. The appellate court was immediately
and remarkably struck by the prejudicial character of the
Finding that the misconduct was "pervasive" and "outrageous," the Sixth
Circuit ordered a reversal.9The appellate panel even
directed the clerk of the court to send a copy of the court's
opinion to the state bar association's disciplinary body for an
investigation into possible violations of the Code of
Professional Responsibility.10 What
happened at trial to trigger such a vigorous and pointed
First, the court examined counsel's indiscretion in referring to the
excluded recall campaign before the jury. During appellate oral
argument, plaintiff's attorney assured the court that
information regarding the recall had "simply slipped out in
cross-examination."11 The court, however, was not
satisfied with this representation. It found that the reference
to the recall was "direct and deliberate." The panel believed
the recall information had been "deliberately injected" into the
cross-examination because previously, during the direct
examination of plaintiff, counsel attempted to ask about the
recall but was cut off by defendant's objection.12
Then, when defendant's employee was on the stand, plaintiff's
attorney asked directly: "Q. Are you aware, sir, that a
Government made a recall notice [sic]." Defense counsel objected
but the information was before the jury.13
Next, the appellate court discussed counsel's references to the relative
wealth of the defendant. Twice in closing argument, he referred
to defendant as a "billion-dollar corporation." The attorney
stated on one occasion: "The opposition is interested in money.
They are going to save that money. But they are not going to
save that money, folks, if you have anything to say about it.
Mr. Igo and his wife and the other passengers lived, and Mr. and
Mrs. Igo and Tony LaRiche lived, and they took the stand against
the billion-dollar defendants, and, ladies and gentlemen of the
jury, they are not quitting."14Subsequently, counsel
stated: "But we do have a chance against a billion-dollar
corporation and we do have our day in court."15
Then, the appellate panel focused on the "wild, unsubstantiated attacks"
made against the defendant. In his opening statement, the
attorney said: "Coachmen made us fight for five years and 11
months until we got into this courtroom."16 The fact
was, however, that plaintiffs themselves delayed for two years
before filing suit and plaintiff's attorney, not defendant, was
sanctioned for dilatory conduct.17Also deemed
"troublesome" were remarks made in summation that the defendant
had hoped that plaintiffs would not survive long enough to go to
trial18 and that defendant was only sorry that
plaintiffs had survived the accident.19
Considered "worse yet" were statements the attorney made in closing that
plaintiff's actions in bringing the vehicle under control on the
highway had saved defendant the cost of six wrongful death
actions.20 Finally, in what the court labeled an
"open invitation to abandon impartiality," plaintiff's counsel
asked the jury: "[H]ow much would you pay not to go through this
experience and trial?"21
Lamenting the "extreme misbehavior" of errant counsel, the court observed
that the defense attorney "did nothing to object to most of" the
offensive statements. When asked about this during oral
argument, defendant's attorney said "she felt that persistent
objections might put her in a bad light before the jury." It was
"clear" to the appeals court, however, that defense counsel "had
an absolute obligation to object, and erred in not doing so."22 Nor
was the trial judge blameless despite the defense attorney's
inaction. "[T]he district court erred in not controlling
Plaintiff's counsel's outrageous behavior. A trial court cannot
sit quietly while counsel inflames the passions of the jury with
improper conduct, even if opposing counsel does not object. The
trial court should have censured and stopped this conduct."23
Although reversal of the judgment was necessary, the appellate court went a
dramatic step further. It could not "let pass what appears to be
unprofessional conduct" by plaintiff's attorney. Reflecting upon
its obligations under Canon 3(B)(3) of the Code of Judicial
Conduct for U.S. Judges,24 the court observed that
counsel's misbehavior merited investigation by the Ohio Bar
Association. It quoted a number of the professional code
provisions that may have been violated.25 Therefore,
the court directed the court's clerk "to send a copy of this
opinion to the proper disciplinary authority … ."26
Some may dismiss this case as an overly egregious anomaly. Concededly, the
cumulative impact of the many infractions seems highly
prejudicial. But many trials do involve some, if not many,
aspects of these kinds of indiscretions. Who is to say which
item of prejudice strikes home the greatest?
To some extent aggressive counsel bent upon rhetorical swashbuckling will
take their cues from the "signals" they get about "what goes" in
the courtroom. If the "message" received is that advocative
improprieties are off limits and the arena of conflict is not a
verbal jungle, then even aggressive lawyers will stay within
explicit or implicit bounds of advocative decency. Some judges
openly prefer to preside over a so-called "tight" courtroom
while others perhaps believe that lawyers, as professionals,
must do more in the way of self-policing. Much might be said for
any of these judicial techniques in terms of overall goals.
However, regardless of approach, the fact remains that
advocative misconduct constitutes a continuing, persistent
challenge in need of effective policing.27
The first line of defense against taint is increased vigilance by the
aggrieved counsel. Prompt and vigorous objection by offended
counsel must be made. If warranted, a curative instruction
and/or mistrial should be requested. The prejudiced attorney
cannot sleep at the switch or be oblivious to the obvious. Yet,
neither should he or she have to act as a fearful
jack-in-the-box springing up at the beginning of every sentence
by the opposing counsel.
The truth is both trial counsel and the courts have important roles to
play. While they may complement each other and overlap in given
situations, the judicial responsibility cannot be passed to
counsel. Somehow, a tone or atmosphere of impermissible
boundaries has to be set in the courtroom. And, where those
bounds are crossed, effective policing and meaningful "cures"
are required. This surely must mean more than a toneless remark
by the court for the jury to disregard the infraction. If
prejudice is truly to be dispelled, the jury also must
understand that the indiscretion is an affront to the court. And
where the process has been seriously tainted, appellate courts
must act courageously to send a clear message to trial bench and
1. 2016 N.Y. App. Div. LEXIS 8728 (2d Dep't Dec. 28, 2016).
2. 295 U.S. 78, 88 (1935).
3. Id. at 88. See R.C. Mongrom, "I believe, the Golden Rule,
Send a Message, and Other Improper Closing Arguments," 48
Creighton L. Rev. 521 (June 2015); T. Bornstein, "Trespassing on
Due Process: Constitutional Objections to Improper Closing
Argument," 34 Champion 38 (March 2010).
4. The Appellate Division, Second Department recently rejected
a plaintiff's appeal based on improper comments by opposing
counsel because plaintiff either failed to object to these
comments at trial or did not seek further curative instructions
and "did not immediately move for a mistrial." Lagos v.
Fucale, 2016 App. Div. LEXIS 3711 (2d Dep't May 18, 2016).
In Ioffe v. Seruya, 2015 N.Y. App. Div. LEXIS 9402 (2d
Dep't Dec. 23, 2015), the court reversed and ordered a new trial
on damages because the trial judge's comments, while plaintiffs'
orthopedic surgeon was testifying, repeatedly emphasized that
the witness was an examining rather than treating physician and
was only "assuming" (via hypothetical questions the judge
directed be asked) that future medical care would be needed. The
court "conveyed an impression of incredulity" towards the
physician's opinions. A fair trial means one free from improper
comments by the trial court as well.
5. See generally, E.L. Birnbaum, C.T. Grasso and Justice Ariel
Belen (ret.), New York Trial Notebook (Rev. 9), Vol. 2, Chapts.
30 (Preparation and Presentation of Closing Argument), 31
(Objections During Closing Argument), (James Publishing 2016);
M.J. Crowley and K.R. Gardner, Summation, Chapt. 19, in N.Y.
State Bar Ass'n, Preparing For and Trying the Civil Lawsuit,
Vol. 2 (2d ed., 2016 Revision); H.G. Miller, Some Do's and
Don'ts For Summation, Chapt. 20, in N.Y. State Bar Ass'n,
Preparing For and Trying the Civil Lawsuit, Vol. 2 (2d ed., 2016
Revision); C.G. Floreale, "Closing Arguments—Not Just A
'Free-For-All'," Trial Techniques Committee Newsletter, pp. 8-12
(Summer 2012); M. Glass, "Summations in Civil Trials," pp.
337-352 (NYSBA, Fall 2013); M. Glass, "A Guide to Openings and
Summations: Part Five," Aug., 5, 2015,
R.S. Kelner and G.S. Kelner, "How To Reverse Your Case in
Summation," originally published in N.Y. Law Journal,
R.L. Carlson and M.S. Carlson, "Outrageous Opponents: How to
Stop Them in Closing Argument," 6 Ga. B.J. 13 (2000-2001); W.J.
DeSantis, "Improper Remarks During Openings and Closings; Should
You Object?" N.J. Law Journal, Aug. 29, 2011); C.B. Hanson,
"Improper Statements in Closing Argument," Minnesota Lawyer
(April 5, 2010) (author is Senior Assistant Director of
Minnesota Office of Lawyers Professional Responsibility).
6. See, e.g., Arnold v. Eastern Air Lines, 681 F.2d 186,
194-195 (4th Cir. 1982) (panel majority deferred to trial
judge's discretion in refusing to reverse despite improper
arguments the dissenting judge found egregious).
7. 938 F.2d 650 (6th Cir. 1991).
8. 938 F.2d at 652-53: "In reviewing this case, the court
begins with the outrageous conduct of plaintiff's attorney, and
the inadequate response thereto by the trial court and defense
9. Id. at 652, 653, 659.
10. Id. at 654-55, 659.
11. Id. at 653.
12. Id. at 653 n.2.
13. Id. at 653 n.1.
14. Id. at 653 n.3.
15. Id. at 653 n.3
16. Id. at 653.
18. Id. at 653 n.4.
19. Id. at 653-654 n.5.
20. Id. at 654 n.6.
21. Id. at 654.
24. "A judge should take or initiate appropriate disciplinary
measures against a judge or lawyer for unprofessional conduct of
which the judge may become aware."
25. 938 F.2d at 654.
26. 938 F.2d at 655, 659.
27. See, e.g., Buhr v. Mayer's Digging Co., 2016 Iowa
App. LEXIS 215 (Ct. App. March 9, 2016) (irrelevant evidence on
indemnification repeatedly argued by counsel was prejudicial;
verdict reversed); Esquivel v. Zuniga, 2013 Phila. Ct.
Com. Pl. LEXIS 502 (Dec. 16, 2013) (egregious conduct by counsel
including reference to punishing big company because of its size
and power warranted mistrial and monetary sanctions for opposing
counsel's trial fees and costs of motion; Yost v. Falker,
2013 Mich. App. LEXIS 1100 (Ct. App. June 18, 2013) (improper
comments by defense counsel that plaintiff was rushed to sue and
mention of TV commercials would have justified a new trial but a
note from the jury during deliberations deemed indication that
the jury did not consider plaintiff unworthy of compensation;
defense verdict affirmed).
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