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Posted in Newsletter on May 10, 2022   |  by Gary Burger

What Not To Say in Closing II

"Golden Rule" Argument/Personalization

Counsel personalizes to the jury by asking them to place themselves in the place of the tort victim or other party to the action. Henderson, 68 S.W.3d at 473. Such arguments are condemned and uniformly branded improper, the rationale of rejection being that a juror doing that would be no fairer judge of the case than the party or victim herself. Henderson, 68 S.W.3d at 473, n. 5. See also Walters v. Hitchcock, 237 Kan. 31, 33, 697 P.2d 847, 849 (1985).

Likewise, in Illinois, "one line of argument that the court has repeatedly found to improperly elicit passion, prejudice, or sympathy from the jury is asking it to place itself in the position of either the plaintiff or the defendant." Sikora v. Parikh, 2018 Ill. App. (1st) 172473, 122 N.E. 3d 327, 339; Koonce v. Pacilio, 307 Ill. App. 3d 449, 457, 241 Ill. Dec. 57, 718 N.E.2d 628 (1999).

Referencing Dismissed or Abandoned Pleadings.

Counsel's reference to dismissed or abandoned pleadings is improper because the pleadings are irrelevant and are used for the purpose of prejudicing the jury. Liberty Hills Dev. Inc. v. Stocksdale, 742 S.W.2d 209, 213-14 (Mo. App. 1987).

"Send a Message"

Missouri courts have long shown displeasure with "send a message" arguments in which punitive damages are not sought. Beis v. Dias, 859 S.W.2d 835, 840 (Mo. App.1993). When the message argument becomes the theme of the entire closing, it constitutes reversible error. Beis, 859 S.W.2d at 840.

Yet, from long experience, appellate courts recognize that trial courts are better positioned to assess the amount of prejudice injected by admittedly improper arguments. Beis, 859 S.W.2d at 840. Having only the cold record on appeal, appellate courts of this state uniformly uphold trial court's determinations of the prejudice injected by "send a message" arguments. Beis, 859 S.W.2d at 840. Illinois courts also prohibit “send a message” arguments. See, e.g. Spyrka v. County of Cook, 366 Ill. App. 3d 156, 170, 303 Ill.Dec. 5613, 851 N.E.2d 800 (2006).