How to Reverse Your Case in SummationHow to Reverse Your Case in Summation
By Robert S. Kelner and Gail S. Kelner
The summation is the trial lawyer's final and perhaps most devastating, weapon. It is a time to persuade and a time to inspire. It is the opportunity to "tie it all together," and to engender among the jurors an emotional reaction to the case. A close case may be won or lost in summation. Although the courts permit attorneys wide latitude to determine the content of their summations, it is not blank check. In an effort to paint the appropriate picture, counsel must be extraordinarily careful not to cross certain lines which could result in reversal of a favorable verdict.
Passion and Prejudice: Perhaps the cardinal rule for summation is that an attorney may not invite the jury to decide a case based on passion, prejudice, or sympathy, rather than the evidence. In egregious cases, appellate courts have not hesitated to overturn verdicts on this ground alone. In Cherry Creek Nat. Bank v. Fidelity & Casualty Co. of New York, 207 A.D. 787 (4th Dept. 1924), a new trial was ordered where plaintiff's counsel made repeated prejudicial and inflammatory remarks in summation. The court cautioned: "when counsel in a close case resort to inflammatory practices to win a verdict, they imperil the very verdict they thus seek." In Minichiello v. Supper Club, 296 A.D.2d 350, 745 N.Y.S.2d 24 (1st Dept. 2002), the jury awarded plaintiff both compensatory and punitive damages where he alleged that he had been improperly terminated from his job because of his sexual orientation. However, the appellate court reversed and remanded the case for a new trial due, in part, to his attorney's improper comments during summation. Among other things, the court noted that counsel referred to one of the defendants, "a German national with an apparent accent, as someone who exhibited an ‘attitude of hatred' and made forced analogies to Nazi Germany and the Holocaust." Moreover, the court observed that even though the issue in the case was sexual orientation discrimination, "plaintiff's counsel presented to the jury inappropriate matters involving African-Americans, Latinos and Jews that went far beyond any permissible boundaries and served no other purpose than to incite the jury's passions."
It is equally improper to stir anger by gratuitously and openly attacking opposing counsel. In Escobar v. Seatrain Lines, Inc., 175 A.D.2d 741, 573 N.Y.S.2d 498 (1st Dept. 1992), plaintiff's decedent died in a maritime accident. In summation, plaintiff's counsel commented regarding his adversary: "I want you to put aside that nice, friendly, affable gentleman because that's not the contest. The decision is is Seatrain responsible and for how much. So forget the Madison Avenue seller. Now, for example, in the orient they have professional criers, professional mourners that come to every funeral and cry and apologize and feel sorry. [Counsel] is a professional mourner here that was sent here by Seatrain so you will forget the real face of Seatrain. The real face of the company that did this. [Counsel] is the facade."
The court held that objectionable comments such as these, together with other unrelated errors, warranted vacatur of the verdict and a new trial.
In Pagano v. Murray, 309 A.D.2d 910, 766 N.Y.S.2d 110 (2nd Dept. 2003),a new trial was granted where defense counsel, who offered no expert witness on his own behalf, suggested that plaintiffs' expert was "a biased prejudiced paid off witness" who "lied," and whose testimony was "worthless" and "valueless." In Clarke v. New York City Transit Authority, 174 A.D.2d 268, 580 N.Y.S.2d 221 (1st Dept.1992), the case was remanded for a new trial where plaintiff's trial counsel committed a number of improper acts during summation, which included acting as an unsworn witness by interjecting statements of personal knowledge of the facts of the case, vouching for the credibility of his own witnesses, accusing defense witnesses of lying, and accusing a defense medical expert of lying for pay. The court found that this was a pattern of conduct designed to influence the jury by considerations not legitimately before them.
In Reynolds v. Burghezi, 227 A.D.2d 941, 643N.Y.S.2d 248(4th Dept. 1996), plaintiff was struck by a bus. His counsel's summation was pervaded by a pattern of egregious inflammatory comments, requiring a reversal in the interests of justice, even though opposing counsel failed to interpose a contemporaneous objection. During summation, plaintiff's attorney not only accused defendants of illegal conduct but also acted as an unsworn witness on subjects such as the manner in which bus drivers generally drive. He interjected his opinion of the evidence at trial and asked the jury to "provide" for plaintiff, discussing irrelevant evidence in an effort to appeal to the jury's passion and sympathy. This conduct warranted a new trial, even though the issue was unpreserved for review by timely objection. The court held that the objectionable conduct was not limited to an isolated remark during questioning or summation, but was a seemingly continual and deliberate effort to divert the jurors' and the court's attention from the issues to be determined.
However, in Stangl v. Compass Transp., 221 A.D.2d 909, (4th Dept. 1995), plaintiffs similarly failed to object to improper comments, which were held not to be preserved for appeal. The court did comment that they were not so prejudicial as to have denied plaintiff a fair trial. This case highlights the importance of preserving objections for appeal.
Not every improper comment will result in reversal. In Calzado v. New York City Transit Authority, 304 A.D.2d 385, 758 N.Y.S.2d 303(1st Dept. 2003), plaintiff's attorney postulated during summation that there was a" conspiracy to cover up the facts surrounding plaintiffs fall." The court commented that the remarks were "deplorable," but did not warrant reversal, holding "Plaintiff's case was very strong, and we are satisfied that the net effect of counsel's improper, but largely isolated, conspiracy allusion was minimal." In Johnson v. Lazarowitz, 4 A.D.3d 334,771 N.Y.S.2d 534 (2nd Dept. 2004), plaintiff alleged that he sustained spinal injuries in a motor vehicle accident which required surgery four years later. Defendant asserted that the surgery was unrelated to the accident. The jury reached a plaintiff's verdict. However, the appellate court reversed and remanded the case for a new trial, because of the many vituperative remarks made by the plaintiff's attorney for the sole purpose of inducing the jury to decide a close case on passion rather than on the basis of the evidence.
The Source of Payment of an Award: It is improper for a plaintiff's attorney to comment unnecessarily on the availability of insurance coverage. See, e.g., Butigian v. Port Authority of NY & NJ, 293 A.D.2d 251 (1st Dept. 1996). The flip side of this coin is that defense counsel may not imply that the award will be taken from his client's pocket, or comment about the financial hardships that would flow from a large verdict. In Vassura v. Taylor, 117 A.D.2d 798,499 N.Y.S.2d 120 (2nd Dept. 1986), defense counsel insinuated in summation that a verdict in plaintiff's favor would deplete his client's life savings. He stated, "What's a lot of money? We don't know what's in the other fellow's pocket; but what's a life savings?" He then "persisted in suggesting that $50,000 would be an appropriate award because that amount would be close to a lifetime of savings for ‘the average working fellow'." The Court held that "it was extremely prejudicial to suggest that the measure of damages was a ‘life savings' or should be determined by whatever was ‘in the other fellow's pocket.'" The court observed that references to the financial status of parties was universally condemned by the New York courts.
Amount of Damages and the Unit of Time Rule: It is proper for attorneys to suggest to the jury an amount to award in damages. The opportunity to do so is an intrinsic part of counsel's right to offer "fair comment" on the evidence. However, despite this ostensibly broad right to address the jury, attorneys are not permitted to justify this requested amount by suggesting a specific dollar figure per second, minute, hour, or year. For example, it is improper to say, "My client will suffer with this injury for 5 more years. For each of these years, I ask you to award him $1 million. I therefore ask you to award him $5 million. It is proper, though, to say,"For the 5 years he will suffer, I ask you to award the sum of $5 million."
This "unit of time rule" is premised on the idea that offering such a time based analysis would distract, rather than guide, the jury. In DeCicco v. Methodist Hospital, 74 A.D.2d 593, 424 N.Y.S.2d 524 (2nd Dept. 1980), plaintiff's counsel, in summation, posed a series of rhetorical questions which amounted to the argument of a "time-unit" theory of damages. His remarks included: "Now wait a minute, there are problems and he should be compensated under the law. I ask you during that ten year period would a thousand dollars a year, would that be fair or just, would it be too little, would it be too much just for that ten year period?" In directing a new trial, the court observed that there is no mechanical means to translate pain and suffering into dollars and the time-unit technique is falsely simplistic in suggesting a mechanical formula to calculate damages.
This rationale is in some tension with the courts' broad view of counsel's right to fair comment on the evidence. The amount of time a person will suffer from an injury clearly does bear on the extent of their damages.Nonetheless, the rule is well settled law in the state, and a violation, when preserved for review by a timely objection, will generally lead to the reversal of a jury verdict. The prohibition is generally strictly enforced and it is important not to run afoul of its boundaries. In Miller v. Owen, 184 Misc.2d 570, 709 N.Y.S.2d 378 (N.Y. Sup. 2000), plaintiff's attorney too-cleverly offered a time-based accounting of his damages request in opening. The court concluded that such an end run around the unit of time rule was impermissible, and declared a mistrial.
Fair Comment: Counsel's remarks in summation must be "fair comment" on the evidence that is actually before the jury. The right to do so, of course, also encompasses the opportunity to comment on gaps in an opponent's proof. For instance, in Dhillon v. Bryant Associates, 26 A.D.3d 155, 809 N.Y.S.2d 25 (1st Dept. 2006), plaintiff's attorney remarked in summation that he had presented medical evidence, and that his adversary had not. The court rejected defendant's apparent contention that by so stating, plaintiff had improperly shifted the burden of proof in the case, holding, "Counsel had the right to make fair comment on the medical evidence in this case, or lack thereof."In Braun v. Ahmed, 127 A.D.2d 418, 515N.Y.S.2d 473 (2nd Dept. 1987), the court held thatcounsel should be permitted broad latitude within the four corners of the evidence by way of comment, denunciation or appeal in advocating his cause.
On the other hand, it is improper, as a general matter, to fill these gaps with innuendo that does not constitute "fair comment." In O'Connor v. Inc. Village of Port Jefferson, 104 A.D.2d 861, 480 N.Y.S.2d 376 (2nd Dept. 1984), the plaintiff had been rendered wheelchair bound when he dove into a shallow portion of defendant's lagoon. In summation, defense counsel said: "I have been in this business for more than 30 years, and when a lawyer hears of a boy who was injured the way Danny was injured and he knows that if he can bring a suit against somebody, he can bring Danny into court in a wheelchair to sit through the whole thing, and it's going to work on the human, inescapable human feelings...And then the lawyer has a problem. Whom can I sue, whom can I blame this on and who has a deep pocket who can pay if we can only get to the jury?"
The court reversed the jury's defense verdict, holding, among other things, that this commentary was completely outside the realm of fair comment.
The Golden Rule: Attorneys also may not invoke what most kindergarten teachers and some courts refer to as the "Golden Rule" argument. An attorney may not ask the jurors to do for the plaintiff what they would want done for themselves in similar circumstances, or otherwise to place themselves in plaintiff's shoes.For instance, in Budzanoski v. Pfizer, 1996 WL 808066 (N.Y. Sup. 1996), plaintiff alleged wrongful termination from her employment. In summation, her attorney, in a series of comments deemed improper by the court, "committed two ‘Golden Rule' violations...when he first asked the jury to put themselves in the position of an employer considering plaintiff's job application (clearly related to her obligation to mitigate possible damages) and then...asked them to put themselves in the position of the plaintiff having to suffer the humiliation of being fired and the anxiety of trying to find a new job (clearly related to possible damages for emotional suffering)." The court concluded that these remarks were not fair comment to the jury on how to assess liability. However, in Boshnakov v. Board of Educ. of Town of Eden, 277 A.D.2d 996 (4th Dept. 2000), counsel's comments were deemed appropriate because they "did not tell the jurors, either directly or by implication, that they should put themselves in plaintiff's place and render such a verdict as they would wish to receive were they in plaintiff's position."
Skillful counsel relying upon "fair comment" should generally succeed in making all necessary arguments without resorting to tactics in summation that will lead to reversal of a favorable verdict.
Originally published in the New York Law Journal. Reprinted with permission.