Closing argument at a jury trial are a minefield for potential misconduct. 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." When the judge admonished counsel to stop because this was not in the record, counsel argued with the judge, in front of the jury, stating it was stated during 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 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 the new trial.
Calling counsel's misconduct a form of "litigation subterfuge," the Second District Court of Appeal affirmed.
Important tips for closing argument:
• Do not argue exclusion of evidence proves the evidence does not exist
• Do not mischaracterize court rulings
• Do not argue facts not in the record (even if they are true!)
• Do not argue with the judge in front of the jury
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