To Object or Not to Object to Closing Argument1
By Anthony J. Battaglia, U.S. District Judge
Copyright 2023
You are at the end of the evidence and in closing arguments in your trial. As your adversary proceeds, you hear something you consider objectionable and must quickly decide what to do! To object or not to object, that is the question (sorry Shakespeare)! You must act quickly since objections to closing arguments must be timely. Courts hold that an objection to improper argument must be made before the judge submits the case to the jury to deliberate—i.e., during argument or immediately following. Otherwise, the objection is waived. See Kaiser Steel Corp. v. Frank Coluccio Const. Co., 785 F.2d 656, 658 n. 2 (9th Cir. 1986) (collecting cases).
This is a dilemma all lawyers face and a common question in their minds. Should I? When should I? The “when” is immediately, as noted above. The “should I” is much more complicated. What follows are some factors to consider in making your decision to object or not, as well as a non-exclusive list of the forbidden or most objectionable arguments.
As a general note, counsel may argue legitimate and reasonable inferences drawn from the facts in evidence. See Chicago & N.W. Ry. Co. v. Kelly, 84 F.2d 569, 573 (8th Cir. 1936); Walden v. Illinois Central Gulf R.R., 975 F.2d 361, 365 (7th Cir. 1992); Burke v. Regalado, 935 F.3d 960, 1029–30 (10th Cir. 2019). The scope of argument itself is defined by federal law, even in diversity cases. See Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1239–40 (5th Cir. 1985).
We know, anecdotally, that petty or technical objections may cause judge or jury backlash. Juries find these types of objections tedious and frustrating. The answer: object only when it really matters.
I. KNOWING WHEN TO OBJECT
So, how do you know when it matters? It depends, of course, but consider the following in the context of your case.
1. Does the comment have a valid purpose? If so, your objection will be overruled.
2. Will the comment unduly prejudice (not just hurt) your case? If yes, you must object!
3. Is the argument supported by the facts in the record? If so, it is fair game. Hold off.
4. Is the comment relevant to opposing counsel’s general line of argument and the evidence? Once again, you will likely not succeed.
5. Does it open the door to something you can take advantage of? Then let it go and exploit the advantage.
6. Will it emphasize harmful evidence? If so, do not do it!
7. Is the objection petty or merely technical such that it may cause judge or jury back lash? Let it be!
8. Do you have a strong opposing argument? Then wait and respond when it is your turn.
9. Is the comment in violation of the court’s prior ruling and orders concerning the trial and evidence? Then yes, yes, YES!
Some lawyers ascribe to the notion that objections will disrupt the flow and impact of counsel’s argument. So, it is a good strategy. Not really! Repeated interruptions of opposing counsel’s argument may alienate the jury, and likely, the judge. In addition, objecting just because you can will probably focus the jury on what your opponent has just said, and if you are overruled, add strength to their argument.
In some instances, the court will beat you to any objections to the prejudicial, flagrant, and problematic comments. The trial judge has a duty to act sua sponte regarding improper argument or other misconduct. See United States v. Sanchez, 659 F.3d 1252, 1258 (9th Cir. 2011); Igo v. Coachmen Indus., Inc., 938 F.2d 650, 654 (6th Cir. 1991) (“A trial court cannot sit quietly while counsel inflames the passions of the jury with improper conduct, even if opposing counsel does not object.”). To this end, the examples below may prove useful to judges who may feel a need to intervene where counsel does not, to avoid potential mistrials or appeals or post trial proceedings.
General considerations aside, any of the forbidden or most objectionable arguments listed below should have you on your feet immediately!2
II. FORBIDDEN OR MOST OBJECTIONABLE FINAL ARGUMENTS
1. The Golden Rule. Do not ask the jurors to put themselves in the shoes of a party or appeal to the juror’s sense of self protection (the latter is sometimes called the “Reptile Strategy”). See Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988). It is improper to argue “send a message”, Strickland v. Owens Corning, 142 F.3d 353 (6th Cir. 1998), except in a punitive damages case, Settlegoode v. Portland Pub. Schools, 371 F.3d 503, 519 (9th Cir. 2004).
The prohibition against golden rule arguments has been a longstanding feature of the American legal system. A golden rule argument is a “jury argument in which a lawyer asks the jurors to reach a verdict by imagining themselves or someone they care about in the place” of an interested person, such as “the injured plaintiff or crime victim.” Black’s Law Dictionary 761 (9th ed. 2009); Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 180 (5th Cir. 2005); Minato v. Scenic Airlines, Inc., 908 F.2d 977 (9th Cir. 1990) (unpublished).
The “Reptile Strategy” attempts to appeal to jurors’ concerns about their own safety and the safety of the community, rather than evidence regarding the specific plaintiff in the case. See Retamosa v. Target Corp, 2021 WL 4499236, at 1 (C.D. Cal. May 4, 2021) (citing Sialoi v. City of San Diego, 2016 WL 6092590, at 1 (S.D. Cal. Oct. 18, 2016)).
2. Appealing to Emotions. Any appeal to emotions, sympathy, passion, prejudice, or bias. It includes racial, gender, ethnic, sexual orientation, political, or religious comments, as well as appealing to sympathy due to military service record. Solorio v. Atchison, T. & S. F. Ry. Co., 224 F.2d 544, 547 (10th Cir. 1955); see Schleunes v. American Cas. Co. of Reading, Penn., 528 F.2d 634, 638 (5th Cir. 1976) (“Appealing to the religious instincts of the jurors” was improper.); Hockaday v. Red Line, 174 F.2d 154 (D.C. Cir. 1949) (“unfair allusion” that plaintiff did not serve in the military).
3. Counsel’s View. The lawyer’s opinion or belief on how they think or feel about the case or a witness. Stemmons v. Missouri Dept. of Corr., 82 F.3d 817, 821–22 (8th Cir. 1996). It is improper for counsel to allude to their personal opinions or beliefs regarding the merits of the case in argument to the jury. See id. “A lawyer shall not in trial state a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil litigant.” Burke v. Regalado, 935 F.3d 960, 1031 (10th Cir. 2019) (internal quotes omitted).
4. Vouching. Vouching for or against (reverse vouching) a witness or party regarding credibility, etc. United States v. Hermanek, 289 F.3d 1076, 1098–99 (9th Cir. 2002)
5. Wealth or Poverty. Relative size or wealth of the parties (except where punitive damages are at issue). Garcia v. Sam Tanksley Trucking, Inc., 708 F.2d 519, 522 (10th Cir. 1983) (collecting cases). “[J]ustice is not dependent upon the wealth or poverty of the parties and a jury should not be urged to predicate its verdict on a prejudice against bigness or wealth.” Draper v. Airco, Inc., 580 F.2d 91, 95 (3rd Cir. 1978). Again, there is an exception if financial condition is an issue, e.g., a claim for punitive damages.
6. Military Service. A form of vouching and impermissible. See Hockaday v. Red Line, 174 F.2d 154, 155–56 (D.C. Cir. 1949).
7. Religion. Counsel’s statement concerning a party’s religion “placed an undue burden on the jury and only served to prejudice the jury in a case already highly charged with emotionalism.” Schleunes v. American Cas. Co. of Reading, PA., 528 F.2d 634, 638 (5th Cir. 1976).
8. Racial or Political Comment. “It is reversible error to deny the opposing party a fair trial by making irrelevant and inflammatory ethnic allusions.” George v. Travelers Indemnity Co, 265 N.W.2d 59, 63 (Mich. Ct. App. 1978). When ethnic allusions are made at trial, the court must look at whether the statements were relevant to the issues, and if not, whether they were calculated to arouse prejudice. Id.
9. Insurance. The fact, or lack, of insurance coverage is not admissible in a negligence case on the issue of liability. City of Cleveland v. Peter Kiewit & Sons Co., 624 F.2d 749, 758 (6th Cir. 1980).
10. Settlement Discussions. These are excluded under Federal Rules of Evidence 408. It is misconduct for plaintiff’s counsel to refer to settlement negotiations with defendant as an indication of defendant’s liability. See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2nd Cir. 1988). Along the same lines, it is improper for defense counsel to argue or insinuate that plaintiff’s settlement with another party indicates that the other party was liable for plaintiff’s injury and defendant is not. See Fed. R. Evid. 408; Lambert v. Midwest City Mem. Hosp. Auth., 671 F.2d 372, 375–76 (10th Cir. 1981); Kuzniak v. Taylor Supply Co., 471 F.2d 702, 703 (6th Cir. 1972). There are exceptions, however, including settlement with a witness or as impeachment.
11. Ad Hominem Attacks. Unjustified comments about other counsel, party, or witness that are marked by or are an attack on their character rather than addressing the contentions made. See Bd. of Cnty. Rd. Comm’rs of Wayne Cnty. v. GLS LeasCo, Inc., 229 N.W.2d 797, 800 (Mich. 1975). “Counsel have no right, either by direct charge or insinuation, to attempt to prejudice a jury against opposing counsel. Such conduct is not ethical and should not be permitted.” Levinson v. Fidelity & Casualty Co. of New York, 348 Ill. 495, 505 (1932). See also New York C. R. Co. v Johnson, 279 US 310, 318 (1929) (“Such a bitter and passionate attack on petitioner's conduct of the case, under circumstances tending to stir the resentment and arouse the prejudice of the jury, should have been promptly suppressed.”).
12. Collateral Sources. This will be based on the law in your court and the issues involved. See, e.g., Larez v. Holcomb, 16 F.3d 1513, 1520 (9th Cir. 1994) (counsel’s argument concerning the city’s indemnification of officer for punitive damages required new trial).
13. Juror’s Self-interest. A form of the “Golden Rule” or “Reptile Strategy”—for example, it is improper to argue that jurors, as taxpayers, might have to pick up the tab. Arguing that it is in the jurors’ self-interest to find for one party or the other is improper. Allstate Ins. Co. v. James, 845 F.2d 315, 318–19 (11th Cir. 1988); Edwards v. Scroggy, 849 F.2d 204, 210 (5th Cir. 1988) (improper for prosecutor to suggest that taxpayers would save money if jury recommended death penalty for defendant). Another example is reference to impact on insurance premiums. Roy v. Employers Mut. Cas. Co., 368 F.2d 902, 904– 05 (5th Cir. 1966).
14. Similar Cases. It is improper for “counsel in a civil case to call to the jury’s attention the results of a former trial involving the same type of case.” R.J. Reynolds Tobacco Co. v. Davis, 245 So. 3d 929, 932 (Fla. Dist. Ct. App. 2018).
15. Reading From Statutes, Case Law, or Legal Opinions. Discussion of the law must be limited to the jury instructions given by the court. Glendenning Motorways v. Anderson, 213 F.2d 432, 435–36 (8th Cir. 1954).
16. Referring to Excluded Matters. It is improper to refer to excluded matters either directly or indirectly. Slane v. Jerry Scott Drilling, 918 F.2d 123, 127–28 (10th Cir. 1990).
17. Facts Not at Issue. Arguing facts and theories not supported by evidence are improper. See Slane v. Jerry Scott Drilling Co., Inc., 918 F.2d 123, 128 (10th Cir. 1990). Cf. Harris v. Pacific Floor, 856 F.2d 64, 68 (8th Cir. 1988). Similarly, inferences not supported by the evidence are improper. Walden v. Illinois Central Gulf R.R., 975 F.2d 361, 365–66 (7th Cir. 1992).
18. Misstating Evidence. It is clearly improper to misstate evidence during closing argument. See United States v. Carter, 236 F.3d 777, 785 (6th Cir. 2001) (collecting cases).
19. Evidence Admitted for a Limited Purpose. Arguing inferences or purposes beyond the limited purpose for admission is improper. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).
While advocacy is a critical part of the trial process, courts have identified various limits to avoid undue prejudice or harm. Understanding, adhering to, and enforcing these limits are essential to ensuring a fair trial, particularly during closing arguments.