When Should You Object in Closing?
It’s good to remind witnesses not to give any emotional weight to statements by opposing counsel. “The other side’s lawyer is paid to disagree with you,” we’ll sometimes say. “So don’t try to convince her and don’t worry if she doesn’t seem to like what you’re saying.” And in truth, this is good advice for attorneys too.
But it can be tough advice to follow. One downside of giving a closing argument is sitting through whatever your adversary has to say in theirs. Since the jury sees everything that happens in the courtroom, you cannot allow yourself to get visibly upset by anything that the other side says. Even if their closing argument is offensive, disingenuous nonsense, the best course of action most of the time is to sit quietly with a bored expression on your face, as though you’ve heard it all before and couldn’t possibly be moved by anything that comes out of their mouth.
But regardless of appearances, you can’t actually daydream during closing arguments, even if the other side has the last word. Because there are circumstances in which you will need to jump to your feet to object. And deciding whether to object during a closing argument is one of the more difficult split-second decisions that you need to make at trial.
So when should you object in closing?
It’s first important to understand why the decision is difficult. Unlike witness examinations, where objections are an ordinary, expected, often low-stakes intervention, objections during closing argument are quite serious. In many courts, judges expect that counsel will be permitted to deliver their remarks uninterrupted, and that objections will only be made only if an attorney says something that is unambiguously not permitted. Objections over trivial matters are not only less likely to succeed, such objections can also draw nasty comments from the judge.
So, if opposing counsel says something improper, you’ve got a difficult choice to make. If you object and are admonished by the court, you look bad in front of the jury. Worse, the few seconds of courtroom drama you’ve just created has now actively focused the jury’s attention on exactly the argument that you didn’t want them to hear. And even worse, by losing your objection, you have now emboldened opposing counsel to expand upon that damaging argument at length. Where he or she might have planned to tiptoe around a dubious argument to avoid an objection, they can now take the gloves off entirely and push the limits on prejudicial statements.
But you can’t simply decide never to object. There are lawyers in the world, some of them quite capable, who view in limine orders and the rules of evidence merely as naive suggestions. If you sit in your seat like a potted plant, they will use closing argument to unwind every victory you’ve won in the case, resurrecting dismissed clams, excluded evidence, and discredited allegations to tar and feather your client in front of the jury. And even normally scrupulous trial lawyers hate to lose. If you’re winning your case by a wide margin, you should be prepared for shenanigans in closing argument even from mild mannered counsel, should they feel as though their backs are against the wall.
The risk is particularly acute given the lack of effective remedies for improper statements in closing. You can ask for a curative instruction from the judge after the closing has completed. But even if you get that, the judge is basically instructing the jury to forget what they heard – an almost impossible task. You can ask for a mistrial, but standard for granting a mistrial based on comments in closing is exceedingly high. So, if you want to stop the jury from hearing something at all, your only realistic option is to get out of your chair and roll the dice on shutting it down immediately.
What happens if you don’t object? A failure to contemporaneously object to an improper statement in closing does not preclude subsequent appellate review, but it does make it more difficult. Under those circumstances, appellate courts review for “plain error,” ordering a new trial only if the statements were so egregious that the trial court was obligated to do something event absent an objection. [1]
It's a tough decision and you have only seconds to make it. How should you decide? Listen to what opposing counsel is saying and ask yourself these four questions:
1. Is It a Deep Dark Secret?
Sometimes there are facts that you go to enormous trouble to keep out of a case. If you’re representing an individual, you generally do not want the jury to know that your client was convicted of a crime or has filed multiple prior lawsuits. If you’re representing a company, you generally don’t want the jury to know that your client was sued before for the same issue or subsequently made serious changes to eliminate the problem that the plaintiff is suing about.
If a case has a deep dark secret, you’ve got to be ever vigilant about the other side trying to sneak it into the record. If they haven’t done so by closing argument, it’s usually because you’ve gotten a ruling from the court excluding the fact from the case. But don’t rely on that. If the fact is bad enough and the lawyer desperate enough, they’ll come up with some excuse later for why they “thought you opened the door.” They may get yelled at by the judge, but the damage has already been done.
Don’t give them the chance. If you hear opposing counsel start to spill the beans on a deep dark secret, interrupt them immediately. Sometimes this may backfire, and the judge will strenuously disagree with your assessment of the situation. But for all the risks of objecting, it's better to jump the gun on the few truly damaging facts rather than take the chance that they reach the jury.
2. Is It the Subject of Earlier Rulings?
While all judges are different, very few of them enjoy being actively defied. So even if a fact or a piece of evidence isn’t extremely prejudicial, if it has been the subject of a clear and unambiguous exclusion order, you should err toward objecting to any reference to it in closing.
Why? Two reasons. First, the risk calculus is substantially more in your favor when you can point to a prior ruling. Even if the judge disagrees with you about whether the statement is objectionable, they’re less likely to chastise you for making the objection if you’re clearly trying to enforce one of their prior rulings.
Second, the optics of the objection, if successful, are actually quite good for you. If the judge shuts down a part of the other side’s argument because their lawyer was “breaking the rules,” it tends to undercut that lawyer’s credibility for the rest of the argument. It suggests that he or she is sneaky, underhanded, or simply desperate, none of which are a good look in front of the jury. So even if it wouldn’t be the end of the world for an excluded argument or piece of evidence to make it into closing, if you can undercut the other side for sneaking it in, you generally should.
3. Is It an Unambiguous No-No?
Some facts or arguments may not be the subject of earlier rulings but are so unambiguously improper that they may warrant an objection anyway. These include references to insurance, golden rule arguments, various species of vouching, and jury nullification arguments. We wrote an entire post on the Seven Things You Can’t Say in Closing that covers these matters in more detail.
While all these forbidden arguments could support a proper objection, you should think a moment before you make one. Unlike deep dark secrets, where it is almost always correct to object, some legally forbidden closing arguments may not be terribly persuasive and might not be worth the bother.
For example, while lawyers are not permitted to vouch for witnesses or offer personal opinions about credibility, you may not much care that the other side says “I thought that the plaintiff was very credible when he testified…” if the rest of the closing is otherwise unpersuasive and uninspired. In contrast, other legally improper closing arguments might be worth knocking over your chair to nip in the bud. If plaintiff’s counsel begins his damages argument with the word “insurance,” you should shut that down before you’re stuck moving for a mistrial.
4. Is It Something You Can Kill in Reply?
If you will speak to the jury after opposing counsel is finished, there are other issues to consider. Sometimes having carte blanche to reply to an improper argument or prejudicial piece of evidence is better than the relief you could obtain in an immediate objection. This is particularly true if opposing counsel spit out the prejudicial fact too quickly to be immediately shut down. In those circumstances you may want to wait until counsel is finished and then seek leave to reply, either in lieu of or in addition to any curative instruction the court deems appropriate. While this might seem an odd request, it has been my experience that even judges who claim to hate “gamesmanship” often enjoy seeing a lawyer punished for “opening the door” to an otherwise forbidden argument or issue.
You need to be realistic about how effective your response will be and whether it is worth calling further attention to an issue that may be bad for your side of the case. But if you have a good response, particularly one that makes opposing counsel’s argument appear disingenuous or dishonest, consider addressing the matter in reply rather than objecting immediately.
Deciding whether or not to object in the moment is always going to be a difficult decision. But by knowing beforehand what deep dark secrets and prior evidentiary rulings are out there and thinking carefully about your alternatives to an objection, you can be ready to make the right decision when the moment comes.
[1] E.E.O.C. v. EMC Corp. of Massachusetts, 205 F.3d 1339 (6th Cir. 2000) (“Unless objection is made, a new trial will be granted only when counsel's conduct was ‘outrageous’ or ‘egregious.’”); Woods v. Burlington N. R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985) (“We retain the authority to review for plain error but exercise of that authority is seldom justified in reviewing argument of counsel in a civil case.”); Dunn v. HOVIC, 1 F.3d 1371, 1377 (3d Cir. 1993) (“when party fails to object to improper closing argument, court of appeals only retains the authority to review for plain error, the exercise of which is seldom justified in reviewing argument of counsel in a civil case”) (marks omitted).
