Civil Litigation Legal Topics Litigation Strategy Trial Strategy

Don’t Let Your Argument Get Personal

arbitration_104240128Although the permissible scope of counsel’s discussion and argument before a jury is broad, personal attacks on opposing parties or their counsel is never ok. Doing so opens you up to successful objections, makes you look like a jerk to the jury, and may lead to you losing your case.

No matter what opposing party or counsel say or do, either before trial or in court, keep your cool and stay above the fray.

Sometimes that’s easier said than done. Here are some examples of attorneys who have gone on the attack and gotten slammed by the court (cautionary tales, if you will):

  • In an action for medical malpractice, plaintiff’s counsel repeatedly stated that defendant was “disgraceful, the most disgraceful defendant he had ever seen.” The court found that counsel improperly “leveled attacks upon defendant, his counsel, and his witnesses.” Stone v Foster (1980) 106 CA3d 334, 353.
  • Counsel referred to opposing counsel as an “idiot,” a “smart guy,” a “laughing hyena.” He characterized objections as “asinine” and “hogwash.” Love v Wolf (1964) 226 CA2d 378, 391. The court held that counsel’s “grievous misbehavior was prejudicial and that justice miscarried.”
  • In a medical malpractice action, the court held it was improper to argue that a conspiracy of silence amounted to suppression of the evidence by a “combine” of doctors that intimidated physicians in the same community from testifying against one another. Gist v French (1955) 136 CA2d 247, 260 n5.
  • Court found prejudicial misconduct based on plaintiff’s counsel repeated references to defendant’s insurance and reference to defense counsel as an atheist. Peacock v Levy (1931) 114 CA 246.

Note that, in California courts, counsel can comment on witness credibility (see e.g., Baker v Market St. Ry (1932) 123 CA 688, 694), but federal courts prohibit counsel from expressing a personal belief on a witness’s veracity or lack thereof. Emery-Waterhouse Co. v Rhode Island Hosp. Trust Nat’l Bank (1st Cir 1985) 757 F2d 399.

As the court in Love v Wolf said, “[a]ggressive advocacy is not only proper but desirable.” But there are limits. Get more specific advice on the permissible scope of opening statements and closing arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chapter 3. Also check out CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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