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

What Not to Say in Closing III

Appealing to a Juror's Self-Interest

It is generally held improper for counsel to make an argument appealing to self-interests of the jurors. Williams v. North River Ins. Co., 579 S.W.2d 410,413 (Mo. App. 1979). See also Dent v. Jefferson County Com'rs, 118 Kan. 519, 235 P. 873, 874 (1925).

Plea of Poverty and Presence or Absence of Insurance

It is improper to suggest, by one means or another, that the real defendant is an insurance carrier. Collins v. Nelson, 410 S.W.2d 570, 577 (Mo. App. 1965); Guardado v. Navarro, 47 Ill. App. 2d 92 (1st Dist. 1964).

It is just as improper to appeal to the jury's sympathy because of the litigant's poverty or lack of insurance coverage. Either kind of argument may result in prejudicial error. Collins, 410 S.W.2d at 577; Lid Assocs. v. Dolan, 324 Ill. App. 3d 1047 (1st Dist. 2001).

Using Graphic Aids - What and What Not to Do

The use in argument by counsel of graphic aids such as charts or diagrams or plats which have not been put into evidence is permissible, provided they are used merely to illustrate a point in counsel's argument based on the evidence, and provided they are not used in such a manner as to tend to confuse or mislead the jury into considering them as evidence. Friend v. Yokohama Tire Corp., 904 S.W.2d 575,579 (Mo. App. 1995).

In Illinois, "The use of exhibits to illustrate a closing argument is proper as long as the exhibits are not misleading to the jury. The exhibits, like closing argument itself, cannot be based on facts not in evidence." Martin v. Zucker, 133 Ill. App. 3d 982, 989, 479 N.E.2d 1000, 1005 (1985); 3A Nichols’ Illinois Civil Practice § 3579.1 (1977 rev. ed.), at 283.

Arguing the Evidence - All the Evidence

A trial court commits no error by permitting counsel to review admissible evidence in argument before the jury after the evidence is in the record. Powderly, 245 S.W.3d at 272.

Fair Retort is Allowed

The law indulges a liberal attitude toward argument, particularly where the comment complained of is fair retort or responds to prior argument of counsel. Boshears v. Saint-Gobain Calmar, Inc., No. 67443, 2008 WL 3286950 (Mo. App. Aug. 12, 2008).

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