I Know its Closing Argument But There Are Rules


My partner and I recently tried a relatively simple auto accident case in a faraway venue. We would be the first to say that we love the sport of closing argument because it is the chance to step in the ring mono a mono and engage in some good old-fashioned advocacy. Without sounding as if we are complaining that somebody kicked too hard in a butt kicking contest, something occurred during the closing argument that remains a spur in our sides and which should be concerning to all of us as lawyers.In closing argument, defense counsel made the following comment:“What this case is about, is about this (indicating – holding a photo of the destroyed vehicle): goin’ into a plaintiff’s attorneys office. What does a plaintiff’s attorney see when he sees this (indicating) picture? He sees dollars signs. So the plaintiff took this (indicting), took this photograph to two plaintiffs attorneys who have come up from Charleston to try this case, they say dollar signs when they saw this picture.”At the time, it was our judgment not to draw further attention to the comment through objection. Instead, we simply returned fire in rebuttal and dismissed our opponent as a hypocrite. So here is the rub and where it concerns us and the future of our profession.Closing argument is a time to reflect on the facts and evidence in the case. The attorneys (on both sides) are NEVER part and parcel of the facts or the evidence. Rule 3.4(e) expressly states that a lawyer shall not “in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” The same rule further restricts counsel from stating a “personal opinion as to the justness of a cause.” Clearly, arguing the alleged motives of plaintiffs’ counsel in a case is a reflection on matters that are outside of the evidence and is nothing more than the expression of a personal opinion about the justness of the case itself.Perhaps one may see this as a hard foul on the field of play that has little to do with the bigger picture and much to do with the bruised feelings of the recipients. To view this matter so myopically is wrong. As lawyers, we have duties not only to our clients, but also duties to the court and to the very administration of justice itself. To emphasize a point that shouldn’t require emphasis, Rule 8.4(e) states that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” To argue, as our nameless friend did, that we as plaintiffs’ counsel were somehow involved in a legal scam or fraud is to suggest that what the jury should not trust is the system itself. The closing argument could easily be restated as follows: “Don’t give the plaintiff money because these guys are a bunch of crooks.” It was nothing short of an indictment of the civil justice system.Through ridiculous advertising and highly publicized stories of lawyer greed, our profession is doing quite enough to destroy the integrity and credibility of our system of justice without having the erosive effects exacerbated through misguided personal attacks between counsel aired out in front of an audience of jurors. For our part, we will address this matter with the Bar and hope they will provide guidance. For your part, we ask that you join us in holding the line on this issue and in preserving whatever remnant of dignity that remains in our profession.Ronnie Richter and Eric Bland