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

What Not to Say in Closing

In our recent April 2022 CLE we discussed in detail what experienced litigators should never say in closing. When it comes to closing arguments the rules on what you can't say are designed to keep out unfair, but really effective arguments. So, because of this its imperative to understand exactly what you should and should not say in closing arguments.

Per diem Argument

The trial technique of appealing to the jury to follow a mathematical formula in measuring damages for pain and suffering is unfair. Faught v. Washam, 329 S.W.2d 588, 601- 04 (Mo. 1959). See also Huxoll v. Nickell, 205 Kan. 718, 726-27, 473 P.2d 90, 96-97 (1970).

In Illinois, it is also an error for counsel to suggest to the jury that it calculate damages for pain and suffering based on a mathematical formula by which a specific sum is awarded per day or other fixed unit of time. Caley v. Manicke, 24 Ill. 2d 390, 182 N.E.2d 206 (1962).

The Adverse Inference Rule

The trial court is accorded broad discretion in ruling on the propriety of closing arguments and will suffer reversal only for an abuse of discretion. Simpson v. Johnson's Amoco Food Shop, Inc., 36 S.W.3d 775, 777 (Mo. App. 2001). However, when counsel for one side undertakes to comment on the failure of his opponent to call a witness, review has been stricter. Simpson, 36 S.W.3d at 777.

The failure of a party to call a witness who has knowledge of facts and circumstances “vital to the case” generally raises the presumption that the testimony will be unfavorable to the party failing to offer the testimony. Simpson, 36 S.W.3d at 777-78; see generally, 1 Ill. Non-Pattern Jury Instr. Civil § 5.01.

Where such a witness is not equally available to both parties, it is prejudicial error for the trial court to prevent the party to whom the witness is not equally available from requesting the jury to draw an adverse inference from the failure of the opposing party to produce the witness. Simpson, 36 S.W.3d 778. It is improper, however, for a party to argue the negative inference resulting from his opponent’s failure to produce such a witness if the witness is equally available to both parties. Elliott v. Koch, 558 N.E.2d 493 (3d Dist. 1990).

"Equal availability" depends on several factors including: (1) one party's superior knowledge of the existence of the witness; (2) the nature of the testimony that the witness would be expected to give in light of his previous statements or declarations, if any, about the facts of the case; and (3) the relationship of the witness to the party. Simpson, 36 S.W.3d 778.

Reading or Arguing the Law

Reading a statute to the jury is improper and, if in reading the statute, counsel misstates the law or misleads the jury, it is reversible error. Lasky v. Union Elec. Co., 936 S.W.3d 797, 802 (Mo. App. 1997).

While as a general rule, counsel is prohibited from instructing the jury on the law, the rule not only does not prohibit counsel from discussing the law as set forth in the court's instructions, but encourages it, as long as the discussion states the law fairly and accurately. Rice v. Bol, 116 S.W.3d 599,612 (Mo. App. 2003); See also Tamplin v. Star Lumber. & Supply Co., 251 Kan. 300,311, 836 P.2d 1102, 1110 (1992).

In Illinois, "Although it is the function of the trial court to instruct the jury as to the law, attorneys can, and necessarily must, state what they believe the law to be and base their factual arguments on that interpretation. Nevertheless, an attorney may not mislead the jury with such remarks." Stennis v. Rekkas, 233 Ill. App. 3d 813, 829, 599 N.E.2d 1059, 1069 (1992).