Offensive Jury Argument By Defense Counsel
Lowell Steiger wrote about a malpractice case in which the plaintiff lost, possibly because of highly improper closing arguments by the defense counsel. This case is unusual because the plaintiff's appeal was granted and will receive a new trial. Here is the portion of the closing argument that caused the reversal:
Defense Counsel: I'm going to touch on in-tentional infliction of emotional distress for a moment. This claim troubles me, not because it has any merit but I don't know Dr. Looby person-ally. I know him professionally from having as-sociated with him through this trial. I don't think he even knows this but he delivered my second child. I'm sure he doesn't remember it. But he is a quiet, professional person. And to have these ac-cusations made against him troubles me. Why is the claim being made? You know what this type of claim is usually reserved for, this intentional infliction? If I have just so much hate for another person that I call them and tell them that their child just got killed in a motor vehicle accident.
Plaintiff's Counsel: Your Honor, I'm going to object. It's highly improper. Counsel is testifying about the basis for a cause of action. His personal opinion. Improper personalization of the evi-dence. It's just designed to inflame the jury and has nothing to do with the facts or the evidence in this case.
Court: Well, overruled. I'll allow it.
Defense Counsel: As I say, it's reserved for people that vindictively want to hurt somebody else. Call them up and say your child just got run over and is dead and society doesn't tolerate that. That's where this comes from.
So, what's it doing in this law suit? Well, let's try to get some punitive damages. I mean, if this is the Lotto or Powerball or whatever they call it, let's really roll the dice big. And how do we do that? We can't do that with a medical malpractice lawsuit. We have to say that Dr. Looby intention-ally did something. So, let's see how we can weave this into intentional misconduct, then we can put in his wage reports. And not only that, Sioux Valley, a non-profit corporation that's owned by all of us. Let's show their balance sheet and--
Plaintiff's Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccu-rate and it is an outrageous statement. It's a pri-vate corporation.
Court: Well, it's argument. I'll allow Defense Counsel to make his argument.
Defense Counsel: If that's an outrageous statement, I probably committed some kind of -
But, in any event, that's all beside the point but why do you do that? Well, let's show some real money and then go after it. We got sympathy on the one end and now let's punish him by show-ing we have a doctor who has been successful with his life and he and his wife own some assets as he approaches retirement and let's show them Sioux Valley Clinic. Yeah, that's the ticket. Now we are on the way. Powerball here we come.
See, tort "reform" works. First thing you do is tell everyone there's a litigation crisis and everyone wants to play the lawsuit lottery. Then, you have defense lawyers work in such great phrases as "Powerball here we come" into the closing argument. Finally, you sit back and see insurer profits soar because they no longer have to worry about jury verdicts.