Attorney Committed Misconduct by Arguing Facts Outside the Record, Appellate Court Holds

Timothy Kowal, Esq.
August 25, 2021

Closing arguments at a jury trial are critical for trial counsel because it provides the opportunity to tie together all the disparate threads presented to them during the course of the trial. But often, opposing counsel will see things very differently. And they will draw very different inferences from the evidence — and lack of evidence — offered during the trial. In short, there is a lot of opportunity for misconduct during oral argument.

A couple of varieties of misconduct are on display in the published opinion of Jackson v. Park (D2d7 Jul. 27, 2021) 281 Cal.Rptr.3d 634, involving an injury during an auto accident. Defense counsel, capitalizing on an in limine order excluding evidence of blood alcohol content, boldly announced there was "no evidence" of drunk driving. Defense counsel also told the jury the plaintiff had failed to disclose plaintiff's doctor and other witnesses during discovery and the defendant had to "track her down," even though no evidence of this had been presented to the jury. When the judge admonished counsel to stop, counsel argued with the judge, in front of the jury, stating it happened in deposition.

When the jury returned a verdict largely in favor of defendant (defense counsel urged that an award of $15,000 was about right, and the jury awarded $17,000), plaintiff moved for a new trial. The judge, noting the evidence made the case a "close call," ruled the misconduct tipped the scales in favor of the defendant, and so granted plaintiff's motion for a new trial.

Calling counsel's misconduct a form of "litigation subterfuge," the Second District Court of Appeal affirmed.

Misconduct to Characterize an In Limine Order Excluding Evidence as a "Sword" to Argue There Is "No Evidence":

After the collision, the defendant was arrested and submitted to a blood alcohol test at the police station, which returned a blood alcohol content (BAC) greater than 0.15. The trial court excluded the evidence of the arrest or the BAC at trial, and instructed counsel and the testifying officer not to mention either the arrest or BAC.

But defense counsel went a bit further than this. During closing argument, he argued "There's zero evidence of an arrest, of BAC." Counsel also quoted the judge's admonition that "there will be no[]" evidence on these subjects." Defense counsel also had a demonstrative exhibit displayed during his closing, stating:

“There is zero evidence of arrest, BAC, or [c]onviction; the only evidence in the case regarding alcohol consumption before this accident was suspicion by Ofc. Powell.... No definitive evidence of intoxication, only evidence of a subjective test regarding physical activities a tired John Park allegedly failed at 3:30 a.m.”

The trial court found this was prejudicial misconduct. Of counsel's characterization of the court's exclusion order, the judge said "you flipped it around and basically used it as a sword to say ... there was no DUI, there was no abnormal BAC...."

The Court of Appeal affirmed.

Key holding: "It is improper for counsel to assert or imply facts not in evidence that counsel knows excluded evidence could refute." [Supported by a long string citation.]

The court went on: "Furthermore, defense counsel not only falsely argued “[t]here's no evidence that alcohol caused” the collision, he also used the court's admonition about Powell's testimony to fortify his assertion that “[t]here's no definitive evidence of intoxication.” After repeating the court's admonition, defense counsel told the jury “the judge has instructed that nothing beyond the suspicion by Officer Powell is involved.” This argument both grossly misrepresented the court's admonition and improperly infused defense counsel's misleading argument with the authority of the court. The trial court did not err in finding defense counsel's arguments about the alcohol evidence constituted misconduct."

Arguing Evidence Not in the Trial Record Is Improper:

Defense counsel also tried to capitalize on the fact that plaintiff's counsel did not offer testimony from plaintiff's doctor or his co-workers that he complained of pain following the accident. But none of this was in the trial record. Although the trial court sustained plaintiff's objection to this line of argument, defense counsel continued to argue with the court, including repeatedly referring to deposition testimony the court had just noted was not in evidence. The court again admonished counsel, who again continued telling the jury the doctor only “came to this trial because we tracked her down.” Another admonition still did not deter defense counsel, who continued arguing with the court in front of the jury before the court finally excused the jury for a break.

On this exchange, the Court of Appeal said: "Defense counsel's conduct during this whole sorry episode was improper. It was improper to argue evidence not in the record, improper to refer repeatedly to that evidence after the court ordered counsel to stop, and improper to argue with the court in front of the jury in a transparent effort to highlight the evidence the court had instructed counsel not to mention. The trial court did not err in finding defense counsel's arguments about Dr. Lafayette constituted misconduct."

Important Distinction: Truthful Arguments May Still Be Improper:

The Court of Appeal noted that, on the point about the calling of witnesses, defense counsel's argument may well have been truthful. But true argument are irrelevant if not supported in the trial record. Here is how the court put it:

"Defense counsel's arguments about Jackson's discovery responses were not improper because they were factually wrong; they might have been factually correct, i.e., Jackson may not have identified Dr. Lafayette in his discovery responses. The arguments were improper because the interrogatory responses and deposition testimony to which defense counsel referred were not in evidence. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796, 16 Cal.Rptr.3d 374, 94 P.3d 513 [“ ‘[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client's case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences’ ”].)"

The Misconduct Was Prejudicial:

The court found the misconduct was prejudicial. Not only was the case a "close call" on the evidence, the court also found that either of defense counsel's acts of misconduct could have prejudiced the jury. "Cumulatively, we readily conclude it is reasonably probable Jackson would have achieved a more favorable result without defense counsel's improper arguments."

Note: Appeals from Orders Granting New Trials Are Reviewed for Abuse of Discretion, Not Substantial Evidence:

On appeal from the order granting the new trial, the defendant argued the Court of Appeal should reverse the trial court's order granting a new trial because substantial evidence supports the jury's verdict. But that is not the standard on review of a grant of new trial. The standard for review of an order granting a new trial motion is not whether substantial evidence supports the verdict, but whether the court manifestly and unmistakably abused its discretion in granting the new trial motion. (Simers v. Los Angeles Times Communications (2018) 18 Cal.App.5th 1275.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at 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 or (714) 641-1232.