Last month, I wrote about a Massachusetts personal injury case in which the Supreme Judicial Court heard oral arguments that addressed an issue concerning improper “reptile based” comments made by plaintiff’s counsel during closing argument. Before jury deliberations began in the underlying trial, the defendants moved for a mistrial, arguing that plaintiff’s counsel violated the “golden rule” by calling upon the jury to place themselves in the plaintiff’s position, “be the voice of the community,” and send the defendants a message. Defense counsel, however, failed to object immediately after the reptile-based statements were made and the trial judge deferred ruling on the motion until after the jury returned a verdict for $150,000. The judge subsequently declared a mistrial, the case was retried, and a new jury returned a verdict for $10,000. The Appeals Court appeared to focus on the defense’s failure to object when it reversed the trial judge’s decision, holding that the defendants’ renewed motion for a mistrial should have been treated under the standard for granting a motion for a new trial.

Golden Rule violations are not unique to Massachusetts and are almost universally prohibited everywhere. Last week, a California appeals court in Plascencia v. Deese vacated a $30 million verdict in a suit accusing a commercial truck driver of causing another motorist’s death after colliding with her vehicle, holding that plaintiff’s counsel improperly invoked the Golden Rule by asking the jury to imagine themselves in the motorist’s shoes. Notably, the appeals court vacated the judgment notwithstanding the fact that defense counsel failed to object to the improper comments because it believed the verdict award “shock[ed] the conscience and appears to have been influenced by the misconduct and improper argument of [plaintiff’s] counsel.”

Defense counsel’s failure to object to the golden rule violation did not deter the appeals court to vacate the $30 million verdict, which was a lucky break for the defense.  It remains to be seen, however, whether the defendant’s good fortune will stand the test of time after the California Supreme Court decides whether defense counsel forfeited any claim of attorney misconduct by failing to object when the improper statements were made.

During closing arguments in Plascencia, plaintiff’s counsel asked the jurors to “just imagine that is your daughter,” and to imagine “that constant love and connection between you and your daughter,” and that “your daughter is taken away.” Clear violations of the Golden Rule, but no objection asserted by defense counsel. 

Plaintiff’s counsel also impugned the integrity of defense counsel during closing argument, telling the jurors that he was “not being straight with you,” and this is “not the time to make up lies and try to cheat your way to justice.” Plaintiff counsel further accused defense counsel of mounting a defense that was a fraud, alleging that he had spent the last five years “actively evading responsibility. And not just actively evading it, but by lying.” “I called them lies in the beginning, but … they have blown into something even bigger things because it is a fraud.”

After the jury returned a verdict for $30 million, the defense moved for a new trial based on, among other things, excessive damages resulting from the improper comments. The trial court acknowledged the inappropriateness of the comments, but denied the motion, holding that the issue had been waived because no objection was made and even if it had not been waived, the comments were not prejudicial to the case.

The appeals court disagreed and found that plaintiff counsel’s comments were carefully contrived and calculated to arouse and inflame the jury to award a large verdict. The Court analogized the improper comments to the sport of boxing, which prohibits hitting below the belt.  “The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.”  Significantly, the Court found that the misconduct was too serious to be cured by an objection and admonition.

Plaintiff’s counsel, however, disagreed with the appeals court’s ruling and intends to file an appeal with the California Supreme Court.  Plaintiff counsel intends to argue that the defendant’s failure to object “deprived plaintiff’s counsel of the opportunity to address the claims, to identify if (in fact) there was misconduct, to avoid (if necessary) the alleged misconduct and, more importantly, deprived the court the opportunity to admonish the jury, thus avoiding the necessity of a retrial on damages.”  We will see what the California Supreme Court thinks about the failure to assert timely objections.  

 As a young lawyer trying relatively low damages cases in front of juries many years ago, I witnessed my opponent violate the Golden Rule on more than one occasion and sat there like a potted plant – I said nothing. I failed to object because I just didn’t know any better. I was taught that nothing you say during closing argument is evidence and, therefore, I mistakenly believed that anything said or implied during closing argument was fair game. Despite being exceptionally wrong about this, my failure to object fortunately never resulted in any damage to my clients because the juries returned defense verdicts in my clients’ favor. I was lucky.