When Can You “Send a Message” in Closing?
Of all the rhetorical devices available for closing argument, perhaps none is more genuinely controversial than asking a jury to “send a message” with their verdict. Certainly, there are other phrases more likely to draw an immediate objection, motion for a mistrial, or reversal on appeal. “Insurance coverage” or “jury nullification” are likely at the top of that list. But asking a jury to “send a message” is unique in that it is simultaneously very common, very effective, and permissible only some of the time.
There are different formulations of the “send a message” closing, but they all involve focusing on the impact that the verdict will have on the defendant or society at large. For example, consider the following statement in a civil trial:
The Defendants earned millions in profits by selling dangerous products to consumers. Why did they do it? Because they thought that they could get away with it. Even today, they think that they can get away with it. Defendants assume that they’re going to walk out of this courtroom with just a slap on the wrist, a little fine that won’t amount to anything compared to their huge profits. And if that happens, they’re never going to stop. Your verdict needs to send them a message. You need to show them that there are real consequences for hurting people and that they cannot profit from breaking the law.
Or something similar in a criminal trial:
This case is about protecting our community from people who would destroy it. Every day, drug gangs roam our streets like an invading army, robbing, stealing, and killing wherever they go. They support themselves by selling their poison to our children. The Defendant thought that he could make money by helping them launder their blood money through legitimate businesses. You need to send a message about what we do with people who betray us to our enemies and endanger everyone we care about.
It's easy to imagine how these kinds of appeals would be effective. Jury service is a substantial sacrifice for many jurors. It’s only natural for a jury to want to believe that their work is important and that it will have a significant positive impact on the world around them. And to the extent that jurors are hesitant to award sizable damages, convincing them that such damages are necessary to protect their community or otherwise prevent future harm can be an effective means to overcome this hesitation. Countless seminars on the plaintiff’s side of the bar are dedicated to allegedly harnessing this “reptile” part of the brain to obtain higher verdicts, and even more counter-presentations are given by the defense bar on “countering reptilian tactics.”
Precisely because of this effectiveness, many courts are clearly uncomfortable with the “send a message” argument and have forbidden it from being in employed in certain situations.
So, when can you send a message in closing?
“Sending a message” is most clearly prohibited in the criminal liability context. Numerous courts have condemned such arguments by prosecutors, characterizing them as “unwise and inevitably suspect” and even “evil.” [1] Some courts have permitted “send a message” style arguments in the penalty phase of criminal prosecutions, such as when prosecutors argue for the death penalty. [2] But as a general matter, courts are exceedingly uncomfortable with the suggestion that a criminal jury should be in the business of sending messages. [3]
With respect to civil trials, there is support for “sending a message” arguments in cases where punitive damages are available. [4] Since “general deterrence” is a factor that juries may consider in setting the proper amount of punitive damages, many courts have held that “sending a message” arguments are appropriately made in punitive damage cases. However, even here there are pitfalls, and at least one court has held that an attorney must limit any calls for message sending to the portion of their closing where punitive damages (rather than liability) are discussed. [5]
Where punitive damages are not available, many courts have held that “sending a message” arguments are inappropriate. [6] However, even here, the results are mixed, with at least some courts permitting the arguments anyway, in circumstances where the “message being sent” is simply that “the laws are taken seriously” [7] or where there is no suggestion that plaintiff is seeking to inflate compensatory damages. [8]
So, what lesson can we take away from all of this? Be careful how you ask a jury to send a message! Assuming that punitive damages are on the table in your case, do your best to link the “sending a message” argument to the damages, as that position is most clearly supported and least likely to result in judicial admonition or reversal.
And if punitive damages are not available? Some courts will bar “sending a message” entirely, but if you do make the argument, make clear that the message is one concerning the wrongness of the challenged conduct, the integrity of the legal system, and very much not a call for additional punitive damages.
[1] See Com. v. Patton, 604 Pa. 307, 316 (2009) (“It is not the words ‘send a message’ that automatically constitutes impropriety, but that phrase is unwise and inevitably suspect—it is inherently a dangerous phrase in a criminal argument, inviting scrutiny whenever spoken. It offends because the jury's role is to render a verdict based on the evidence, not based on the effect of that verdict.”); Ice v. Com., 667 S.W.2d 671, 676 (Ky. 1984); (a prosecutor may not “urg[e] the jury to make an example of the defendant [to] send a message to everyone else similarly situated”); United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984) (“A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear.”).
[2] Wells v. State, 698 So. 2d 497, 514 (Miss. 1997) (“deterrence is, in fact, an established goal of imposing the death penalty, which goal necessarily entails, to some extent, sending a message.”); Rippo v. State, 113 Nev. 1239, 1261 (1997) (“Rippo contends that the prosecutor's statements improperly urged the jury to send a message to society through imposition of the death penalty. We conclude that the prosecutor's statements constitute an explanation of the rationales supporting the death penalty. This is a proper area for prosecutorial comment.”).
[3] See, e.g., Payton v. State, 785 So.2d 267 ¶ 11 (Miss. 1999) (“We have repeatedly condemned the ‘send a message’ argument and warned prosecutors accordingly.”).
[4] Stewart v. Jackson, Case No. 1:17-CV-273, 2021 WL 1660976, at *5 (N.D. Ind. Apr. 28, 2021) (“In this case, since Stewart is seeking punitive damages, the case law makes clear that he can, in his closing argument, argue that the jury should award him punitive damages in order to punish or send a message to the Defendants.”); Clark v. Chrysler Corp., 436 F.3d 594, 609–10 (6th Cir. 2006) (“although plaintiff's counsel asked the jury to “send Chrysler a message” that changes are necessary, this comment was appropriately aimed at deterring Chrysler's use of a defective door latch system in the future.”).
[5] Payton v. Fike, Case No. 1:09-CV-222, 2010 WL 4065601, at *5 (N.D. Ind. Oct. 15, 2010) (party “may make ‘send a message’ arguments to the jury, but only in the limited context of his request for punitive damages.”
[6] Gaddy v. Terex Corp., Case No. 1:14-CV-01928, 2018 WL 11350558, at *2 (N.D. Ga. Dec. 18, 2018) (“Send-a-message arguments are improper because they constitute an implicit request for punitive damages, and this request is inappropriate at the compensatory liability/damages stage.”); Martex Corporation v. Artiles, 354 So.3d 1122, 1125 (Fla. App. 2023) (“Lastly, in closing argument, counsel for Artiles asked the jury to render their verdict ‘not just for these two folks. This is an answer for this entire community.’ This is considered “send a message” language that is prohibited.”); Betts v. City of Chicago, Ill., 784 F. Supp. 2d 1020, 1033 (N.D. Ill. 2011) (“Given that compensatory damages are limited to actual losses, this court agrees that Betts' argument that the jury should “send a message” is a punitive damages argument.”) (granting motion in limine to exclude).
[7] Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997) (“As the trial court stated, ‘counsel's comments merely suggested that the jury should send a message that this country's civil rights laws are vigorously enforced and that plaintiff should be fully compensated’”).
[8] Nice v. ZHRI, Inc., 105 F. Supp.2d 1028, 1029 (E.D. Ark. 2000) (“[I]t is appropriate to ask the jury to ‘send a message’ if counsel is not seeking an inappropriate punitive damage award.”); Koger v. Norfolk Southern Railway Company, Case No. 1:08-0909, 2010 WL 11735927, at *5 (permitting “send a message” argument where “plaintiff was not arguing for an award of punitive damages but, rather, trying to minimize any finding on comparative negligence.”).
