Can You Draft a Confession in Closing?
As we’ve written before, most courts will give attorneys a lot of leeway in making a closing argument. There are some basic rules that attorneys violate at their peril, but so long as you avoid discussing excluded evidence or arguing for outright jury nullification, you are likely to avoid serious consequences. Even a summation that is technically improper or resembles an unusually violent church sermon is unlikely to result in more than an off-the-record tongue lashing from the judge and a reminder to the jury that “attorney arguments are not evidence.” Mistrials based on improper closing arguments are rare.
But the best way to avoid crossing a line is to know where it is. Because of that, it’s helpful to see examples of closing arguments that went out of bounds in unusual ways. The Tenth Circuit considered just such an argument in Whittenburg v. Werner Enterprises Inc., [1] an appeal of a federal jury trial held in the Western District of Oklahoma.
The plaintiff, Mack Whittenburg, was severely injured when he drove his pickup truck into a stopped tractor trailer on a state highway. The drivers of the tractor trailer had gone the wrong way when turning onto the highway and had become stuck when they attempted to make a U-turn, inadvertently blocking the highway in both directions. While the tractor trailer had its lights on, the vehicle was so large that the headlights were shining down the opposite side of the road from where the plaintiff was driving, and the plaintiff believed that it was parked on the shoulder on the opposite side of the road. Because it was dark, he did not see that the back of the truck stretched over his lane until he was right on top of it and hit the stopped vehicle at essentially full speed.
The plaintiff survived and sued the trucking company for negligence. In closing argument, the plaintiff’s lawyer took an unusual approach. He spent over half of his summation on an exercise in which he told the jury “I want you to do just an imagining thing with me,” and then told them a story which he acknowledged was “just imagining” but which took the form of a fictious letter from the Defendants to the Plaintiff’s young children in which they confessed to being totally responsible for the accident and admitted to various forms of abusive misconduct in the litigation. [2] The Court of Appeals was a bit flabbergasted by the whole thing and Justice Gorsuch, then on the Tenth Circuit, quoted portions of it at length in his decision. What follows should give you some flavor of the closing at issue:
And so I want to take you back to November 30th, and I want you to do just an imagining thing with me.
You recall [plaintiff’s wife] sitting there on the stand and saying, “Sunday afternoon we saw [plaintiff] off…” Now, just bear with me; think with me.
Imagine that there's [plaintiff’s child], and there's [plaintiff’s wife], and they sent [plaintiff] off, he's on his way out there Sunday afternoon, maybe six o'clock...
[Plaintiff’s child] turns around and gets ready to walk back in the house, and there's an envelope sitting there on the floor, and he reaches down and he picks it up, and he gives it to [wife], and [wife] opens it, and she looks at it, and it's a letter.
It's a letter to [the children].
I'm just imagining, but listen to these facts.
This letter's dated November 30th, 2003, and it's from [Defendant].
“[Child]:
That was the last time you will ever see your dad as you now know him. You should let your siblings know this.
In just a little while, our company drivers, Jon Morlan and Marisela Neff, are going to get in one of our big semi-trucks in Limon, Colorado, and we're going to head south toward Amarillo pulling a loaded trailer. Ms. Neff will be driving.
She's too inexperienced to make this trip safely, and Mr. Morlan will be too tired to properly supervise her, and, while Mr. Morlan crawls in the truck sleeper and goes to sleep...
Ms. Neff will be unable to properly follow the route that she and Mr. Morlan laid out, and she will be too confused to read the upcoming road signs.
Our drivers will arrive in Boise City, Oklahoma, just ahead of your dad, sometime around midnight or thereafter. Ms. Neff will take a wrong turn west of Boise City, and Mr. Morlan—Mr. Morlan will be too in much of a—he'll be in too much of a blue funk to be of any help to her after she does call on him for help…
Once stuck on the highway, our drivers will ignore the law, and they will ignore our company procedures, and recklessly set a trap for your dad…
After he smashes into the side of the trailer and the impact literally rips the muscle and flesh off of his bones and shatters his lower right leg, our trainer, Mr. Morlan, will soon disappear into the truck and try to get himself woke up and out of his blue funk before anyone else arrives on the scene and can observe him…
We will wait for your dad to sue us to recover for his damages, and then we will try to avoid full responsibility for what happened. We will make excuses, and our lawyers will try to blame the collision on your dad, saying it was just an accident and that he had the last clear chance to avoid it. We will never take responsibility for our driver's actions.
We will hire own—our own lawyers who will take your dad's life apart. Our lawyers will focus on the fact that your dad comes from a prominent Texas Panhandle family, and our lawyers will expose every part of your dad's professional and personal life in an attempt to make the jurors think poorly of him.
Our lawyers will accuse him of being a trust-fund baby who intentionally remained under-employed just so he could bring this lawsuit and prove damages.
Our lawyers will hire experts and will force your dad's lawyers to hire experts in order to prove that he wasn't at fault.
We will fight to keep out of evidence that our driver-trainee pleaded guilty to unlawfully stop—unlawfully parking a stopped vehicle that night…
Our lawyers will spend whatever it takes to try to talk our way out of having to be accountable for what our inept trainer and our inexperienced driver did.
We will subject your dad to a trial if we have to. We will do everything in [ ]our power to convince the jury that your dad was really not all that injured in the first place, and that your dad is overreaching in trying to prove his damages.
Of course, if none of that works, our lawyers will accuse your dad of being a failure because his law firm used to have 20 members and now it only has five.
Of course, none of this is true, but we'll keep using smoke and mirrors and half truths the best we can to try and shift the jury's focus away from the real issue in this case, and that is our inexperienced driver trainee and our inept driver trainer attempted an improper U-turn and got high-centered and then failed to warn oncoming traffic—traffic of the danger it created, and that is what really caused, directly caused the collision in this case.
Sincerely, [Defendant].” [3]
The trucking company’s counsel was not totally asleep and, as such, repeatedly objected to the “fictitious letter” framing, arguing that “this is no comment on any evidence we've heard in this case.” [4] The judge overruled the defense lawyer’s first objection, and when he continued to object, granted him a standing objection. [5] After summations, the judge did, ultimately, issue an instruction to the jury that they should “remember that any statements, objections, or arguments made by the lawyers are not evidence in the case” but did no more than that. [6]
On review, the Court of Appeals reversed, ordering a new trial. While declining to rule that an “imaginary letter” format for a closing is per se improper, the court found that its use in the case required a new trial.
First, the court noted that the letter included a laundry list of “invented admissions,” by the Defendant, including that its drivers were “inexperienced,” “confused,” “tired,” “in a blue funk,” and that they “ignored the law” and “ignored company procedures.” While these “facts” might have been fairly argued from the evidence, the court found that styling them as admissions from the defendant, even in a fictious letter, was prejudicial, since it implied that the defendant personally agreed with their content.
Second, the court was very upset with criticisms of defendant’s counsel contained in the fictitious letter. In particular, it was upset with the implicit suggestion that it was wrongful or improper for the defendant to vigorously defend the case or that the defendant had some premeditated plan to torture the plaintiff through the legal process. The court noted that plaintiff’s counsel spent a full quarter of his argument on such attacks, and even absent the unusual styling, this volume of argumentation might provide a basis for a new trial, writing that “To imply or argue that the mere act of defending oneself, or the mere act of bringing suit, is reprehensible serves no proper purpose, and for time out of mind it has been the basis for appellate courts ordering new trials.” [7]
So, is the “imaginary letter” closing always forbidden? Well, maybe not. Just a few years later, the Court of Appeals for the Tenth Circuit addressed a very similar situation in United States v. Gregory. [8] In that case the government was prosecuting a former loan officer for defrauding several banks. In closing, the prosecutor asked the jury to “imagine” a hypothetical “pitch” in which the defendant had told the banks the true facts. The pitch included details like:
If I don't get this loan to go through so these guys can make a pile of money off it, I'll probably get fired.
My loans at [University National Bank] are tanking: If this trend keeps up, the bank could lose millions of dollars. I'll be out of a job.
Of course we've been able to hide the bad nature of these loans so far. We just extend the loan so it looks like they're current. We call this extend and pretend.
I'm also bringing this loan to you because we have bank regulators, and I don't know how much longer I can extend or pretend. [9]
The defendant objected repeatedly during trial, was also given a continuing objection, and challenged his conviction on appeal, arguing under Whittenberg that the “invented admissions” in the “hypothetical pitch” were prejudicial.
A divided appellate panel upheld the conviction arguing that “in the American tradition a closing argument can be a quintessential example of the art of persuasion” and that “[j]ustice will not be served if we are too quick to constrain the imagination of litigators.” [10] The majority distinguished Whittenberg, writing:
[I]n this case the evidence supported essentially everything that Defendant hypothetically confessed. Second, there was no apparent purpose for having the trucking company confess in the Whittenburgletter other than to suggest its admission that it engaged in various wrongdoing. In this case, however, the whole point of the hypothetical was that Defendant never admitted his concealment of material facts—that is, he did not provide full disclosure to the victim banks of the problems with the proposed loan. The prosecutor was arguing that Defendant should have disclosed those matters and the loan would never have gone through if he had done so. In short, the prosecutor was pointing out that the disclosures omitted by Defendant were material. No juror could have misunderstood this point. [11]
The dissent disagreed, noting that many of the statements in the “hypothetical pitch” had no basis in the record and that the “no jury would be confused” and “what defendant should have done” arguments had not carried the day in Whittenberg.
What can we take from this? A cynic might question whether prosecutors and plaintiff’s counsel are held to comparable standards. But the key insight is that if you are going to push the envelope on closing presentation, you need to be conservative on content. We don’t recommend the approach, but if the Whittenberg plaintiff’s counsel had stuck to a conventional style, he or she might have gotten away with spending a quarter of their closing complaining about how the case was litigated. Conversely, if he or she had been exceedingly scrupulous about ensuring that everything in the “fictitious letter” could be sourced to admissible evidence, they might have avoided a reversal on appeal.
The lesson is not to avoid experimentation and innovation in closing statements – that is the only way that the practice of law improves. But a careful test pilot only pushes the envelope in one direction at a time. In closing, you need to know when you’re taking a calculated risk on style in service of making a more effective presentation and be sure to ensure every other aspect of your performance is beyond question.
[1] 561 F.3d 1122, 1124 (10th Cir. 2009)
[2] Id. at 1125.
[3] Id. at 1125–27.
[4] Id. at 1127.
[5] Id.
[6] Id. at 1132.
[7] Id. at 1130.
[8] 54 F.4th 1183, 1187 (10th Cir. 2022).
[9] Id. at 1219.
[10] Id. at 1210.
[11] Id. at 1215.
