An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.
In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.
The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel.
Before turning to the plaintiff’s arguments, it may be helpful to know what counts as a “golden rule” violation. As you can imagine, the difference between a good persuasive, passionate appeal to the jury, and an improper “golden rule” violation, can be subtle.
First, here is the statement of the rule against “golden rule” arguments: "`The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ. Proc., § 604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485; see also Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319-320; Zibbell v. Southern Pacific Co. (1911) 160 Cal. 237, 255.)" (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 765.)
Here are some examples of what constitutes improper “golden rule” arguments: “Examples of improper argument are: "
This life of independence is gone. What it would be worth to you? He continued . . . if you concern yourself with this pain and you could have a moving joint in your body that was constantly moving and every time you moved your major muscle it wouldnt move, what would you pay as an individual to free yourself from that pain, $5 a day, $10 a day? I wouldnt take $150 a day—$250 a day—so lets keep this in mind when you jurors sit down and discuss the plaintiffs case. " (Id. at p. 484.) "
How would you like to sit in that chair for eight hours with a non-unionized femur for ten dollars a day? Would you do it? . . . This reference passed without objection, as did a final appeal in which counsel stated, Someone comes up to you with a handful of diamonds and says, "This is worth $500,000.00." Would you take it and would being crippled for the rest of your life be worth it? "" (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 483-484.)
These examples suggest the touchstone for a “golden rule” violation has to do with asking the jurors to put themselves in the party’s shoes, and to render a verdict in favor of the party as though the jurors were rendering a verdict in favor of themselves. To bring it back to the moral of the “golden rule,” a jury is not supposed to do unto others as the jury would have others do unto them. (Which is pretty counter-intuitive, and tends to underscore the otherworldliness of serving on a jury and rendering judgment on others.)
As we just saw, making a lot of “how would you feel?” arguments to the jury is improper and violates the “golden rule.” But that is just what counsel did here, and yet got away with it. Here’s how.
Here is what counsel argued, and I am going to boldface the clever rhetorical device: “I—I've been offended by—to the idea that for the memory of seeing her mother die, for seeing her rolling on the ground, for seeing her body crushed, that that memory should only be reimbursed for five to $10,000 .... [¶] I mean, let's just think about what's being traded there. This is as if somebody went up to [the plaintiff] Yijing Chen and said, well, I will exchange with you $10,000, but in exchange for that we want to be able to implant a memory in your brain and that memory is going to be the image of your mother being crushed and her being—moaning and gurgling and everything that you saw, and you're going to have that image in your brain every night when you close your eyes, and you're going to have that image in your brain for the rest of your 51.2 years, and you're going to—it's going to cause you to cry, it's going to cause you to get angry, it's going to cause you to think differently about yourself ....”
So counsel stood in front of the jury, and the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?
No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.
A very effective argument. For which the jury returned a verdict of $18 million.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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