Seven Things You Can’t Say in Closing
Many parts of legal practice are rote, standardized, and frankly a little boring. While there is a tremendous amount of value to a well-drafted contract or a thorough set of document requests, neither has much aesthetic value and the usable space for creative expression and innovation around them tends to be fairly small. In fact, much of their value lies in their uniformity – both contracts and discovery demands are more likely to be enforced by a court if their terms fundamentally match industry standards.
Closing argument on the other hand, has virtually unlimited space for creative expression. While a court will generally set time limits and some basic ground rules (e.g. whether you can walk around and whether you can show the jury the charge [1] before it is read), even the most narrow-minded courts accord an attorney extraordinary freedom in deciding what to say to the jury and how best to make his or her most effective presentation. A closing can be a lengthy, meticulous analysis of photographs and documents or a short speech with no visual aids at all. The tone can be friendly and congenial, detached and clinical, or angry and indignant.
Unlike most legal work, there is no value to uniformity. To the contrary, most lawyers – like most people – are mediocre public speakers and a closing that merely meets “industry standards,” has left a lot of value on the table.
But while closing accords enormous freedom to the clever trial lawyer, there are some statements that are flatly prohibited. Making these, or in some cases coming close to making these, invites intervention by the court, and in some cases even a mistrial.
So, with apologies to George Carlin, what are seven things you can’t say in closing?
Number One: “Opposing Counsel is a Stupid, Lying, Scoundrel”
It is generally permissible to take aim at the opposing party in closing, suggesting that their arguments are moronic, their witnesses are craven liars, and their legal claims (or defenses) are embarrassing and wholly baseless. But while most of a party’s agents or employees are fair game for attack, their trial counsel are decidedly not. Courts have routinely chastised lawyers who take personal shots at opposing counsel in closing and even ordered new trials when the remarks are sufficiently hostile. [2]
As such, you cannot call opposing counsel a liar, even if he or she is one. You cannot call opposing counsel a “slick lawyer” [3] (even if he or she would take it as a compliment) nor can you suggest that opposing counsel is “the man behind the curtain” [4] orchestrating the claims at issue.
Number Two: “What If It Had Been You?”
Often taught to children, the “Golden Rule” is that you should treat others as you would like to be treated. [5] While excellent advice for kindergarteners, woe to the attorney who quotes it in closing.
Courts have not only punished counsel who invoked the Golden Rule by name, they have overturned verdicts where counsel did little more than appeal to the idea of human empathy, by suggesting that jurors imagine themselves or their loved ones in the position of the plaintiff. [6]The justification behind these rulings is that jurors, like a herd of excitable cattle, will be so overcome with emotion by the idea of being in the plaintiff’s shoes that they will abandon all logic and restraint in stampeding to an improper verdict.
Is this jaundiced view of juror sophistication a good reason to exclude a “rule” that most jurors have heard a hundred times before and that most children figure out naturally early in life? [7] Maybe not. But the law is the law, and a careful attorney would do well to avoid any argument in closing that asks the jury to personalize the plaintiff’s injury or in any way imagine themselves as anything other than neutral third parties to the dispute before them.
Number Three: “In My Opinion…”
Jurors are almost always instructed that opening and closing statements of counsel are not evidence. They are also routinely instructed that the questions asked by counsel are also not evidence. Ethics rules circumscribe the degree to which an attorney can serve as both trial counsel and a fact witness, even requiring disqualification in cases where a trial counsel might be required to personally testify.
In service of this distinction, attorneys are not permitted to offer anything resembling testimony in argument. This includes obvious testimony (i.e. “I was there and saw what happened.”) but also expressions of personal opinion that amount to vouching for or against other evidence or would otherwise require the jury to weigh the personal integrity of counsel. [8] As such, courts have ordered new trials where attorneys offered personal opinions as to the merits of a case, the honesty of witnesses, or whether the attorney would personally have taken the actions described at trial. [9]
This can be a tricky rule to avoid, as it is in the nature of a closing argument to argue about the meaning and credibility of evidence. But as above, the key is to avoid personalizing the argument. It is permissible to argue – objectively – that a witness’s story is not credible given the evidence or that a legal theory is not supportable under the law. However, at the point at which you tie that argument to your subjective opinion or personal experience, you risk the attention of the court.
Number Four: “The Defendant Has Insurance”
Courts have repeatedly expressed concern that jurors view insurance coverage as “free money” available to be given to plaintiffs regardless of whether they have been legitimately harmed. [10] Accordingly, a “reference by counsel to insurance coverage is ground for a mistrial unless it is made for a legitimate purpose.” [11] While a passing reference to insurance is does not automatically guarantee a mistrial, anything beyond that creates a substantial probability of reversal. [12]
As such, unless key disputed facts turn on whether a defendant has insurance coverage (rare) attorneys are prohibited from disclosing whether the defendant is insured. This is true whether the reference is direct (“he’s got insurance”) or indirect (“the defendant has no financial interest in this case”).
Number Five: “Do You Know How Much Other Juries Award?”
Jury verdict databases exist, and attorneys and parties routinely use them to guide client expectations and facilitate settlement. While every case is different, it is often very useful to know what the “market price” of a particular harm or injury is, particularly when clients have unreasonably or emotionally laden expectations. And defendants who have defeated claims before often recoil at paying damages for conduct that a prior jury has excused.
But, as much as jurors filling out a verdict sheet might want to know what prior juries decided or what a legal claim is “worth” this information is generally forbidden in closing. [13]
Number Six: “Let Me Tell You What the Law Is”
The judge instructs the jury on the law. While an attorney can argue that the facts fit within the framework provided by the judge, an attorney cannot generally instruct the jury as to the law that they must follow. [14] And should an attorney misstate the law in closing, he or she risks instant admonition by the court, along with the possibility that a verdict may ultimately be reversed.
Number Seven: “The Law is Unjust. Ignore It”
Since the days of William Penn, [15]courts have acknowledged that juries can ignore the instructions that they are given and return a verdict that appears to be at odds with the law. [16] Jurors cannot be punished for this “jury nullification,” and, absent credible evidence of bribery or other similar misconduct, courts will not probe the reasons behind a jury’s decision. Verdicts can sometimes be overturned if they are unsupportable under any plausible interpretation of the evidence, but not because a jury is suspected to have ignored the law.
But despite this, attorneys are absolutely – positively – forbidden from asking a jury to ignore the law or even suggesting that they are free to do so. [17] Arguing for jury nullification in closing is perhaps the shortest possible road to sanction, mistrial, and/or or attorney discipline. [18]
[1] The jury “charge” is the legal instructions read to the jury by the court, usually immediately after closings.
[2] See, e.g., Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. Dist. Ct. App. 2007) (ordering new trial on the grounds that “Plaintiff's counsel's arguments to the jury that defense counsel was ‘pulling a fast one,’ ‘hiding something,’ and ‘trying to pull something,’ was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury”).
[3] Wilbourn v. Cavalenes, 923 N.E.2d 937, 957 (Ill. App. 2010) (“The reference to plaintiff's counsel as a ‘slick lawyer’ was improper, and an impermissible personal attack against the integrity of plaintiff's counsel.”).
[4] Lee v. ***, 188 N.Y.S.3d 405 (N.Y. Sup. Ct. 2023) (ordering new trial).
[5] Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d 457, 463 (S.D.N.Y. 2003) (“The well established “Golden Rule,” also known as the ‘bag of gold’ rule, prohibits counsel from telling 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.”).
[6] Myrick v. Stephanos, 220 Ga. App. 520, 522, 472 S.E.2d 431, 435 (1996) (overturning verdict where “[i]n determining the amount of compensation to be awarded, plaintiffs' counsel made repeated statements asking the jurors to put themselves in the various positions Stephanos had been put in as a result of this accident.”); Coral Gables Hosp., Inc. v. Zabala, 520 So. 2d 653, 653–54 (Fla. Dist. Ct. App. 1988) (“The remark was an improper “golden rule” argument—an attempt to undermine the neutrality of the jury by asking its members to identify with the plaintiff and make a determination from a personal perspective. Reversal is often required in the face of such an argument and is required in this case”) (internal cites omitted).
[7] Most research suggests that children develop at least a basic “theory of mind,” allowing them to understand that other people have mental states and experiences that differ from their own between 3 and 5 years of age. This appears to be true regardless of whether a lawyer has spilled the beans about it.
[8] See e.g., Lepore v. Chicago Transit Auth., 2011 IL App (1st) 092576-U, ¶ 52 (overturning verdict where “Plaintiff's counsel vouched for plaintiff [and] commented on his personal opinion regarding the credibility of defendant Mustafa and defendant Reed.”).
[9] See, e.g., Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181, 182 (Fla. Dist. Ct. App. 1988) (ordering new trial where closing contained “numerous expressions of the attorney's personal opinion concerning the justness of [defendant]'s defenses, the credibility of witnesses or the lack thereof, and [plaintiff]' culpability as a civil litigant. For example, the attorney said he did not think [plaintiff]'s witnesses' testimony was reasonable. He did not like [plaintiff’s] expert witness and he thought he was misleading; he did not think [plaintiff’s] testimony was true.”)
[10] Christian v. First Liberty Ins. Corp., Case No. 1:10-CV-125, 2011 WL 949754, at *2 (M.D. Pa. Mar. 16, 2011) (“knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid, not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk”); Salm v. Moses, 13 N.Y.3d 816, 817–18 (2009) (“The rationale underlying this rule is twofold. First, it might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict”).
[11] Cuccarese v. Soloman, 405 F.2d 866, 867 (2d Cir. 1969); see also, e.g., Blake v. Roy Webster Orchards, 437 P.2d 757, 760 (Oregon 1968) (“If insurance is not relevant and is intentionally injected into the case, the trial court must grant a motion for mistrial and if it does not it has committed reversible error.”).
[12] Campbell v. St. Barnabas Hosp., 195 A.D.3d 405, 408 (1st Dep’t 2021) (“The passing reference to insurance or similar benefits will not necessarily result in reversal. However, if the testimony goes beyond mere mention of insurance, then a mistrial may be warranted.”) (internal cite omitted).
[13] See e.g., Bircher v. BNSF Ry. Co., 356 Mont. 357 (2010) (upholding new trial where party referred to prior jury verdicts in closing); Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892, 894 (Fla. Dist. Ct. App. 1982) (ordering new trial in personal injury case where attorney mentioned large amount awarded to Carol Burnett in defamation case).
[14] Barfield v. Damon, 245 P.2d 1032, 1038 (N.M. 1952) (“it is the prerogative of the court to instruct the jury and the parties may not instruct the jury through arguments of counsel on a subject which should be covered by an instruction of the court.”).
[15] Bushell’s Case, 6 State Trials 999 (1670).
[16] Horning v. D.C., 254 U.S. 135, 138 (1920) (“[t]he judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts.”).
[17] United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) (“While we recognize that a jury may render a verdict at odds with the evidence or the law, neither the court nor counsel should encourage jurors to violate their oath. We therefore join with those courts which hold that defense counsel may not argue jury nullification during closing argument.”).
[18] Lioce v. Cohen, 174 P.3d 970, 987 (Nev. 2008) (upholding new trials and monetary sanctions against attorney who argued for jury nullification in closing and referring him to state bar for professional discipline); Dunlap v. King, Case No. CIV.A. 3:08-0077, 2009 WL 2151311, at *3 (M.D. Tenn. July 15, 2009) (granting new trial where counsel made “in effect, a jury nullification argument” in closing).
