You may be very tempted to tell the jury about the defendant’s abundant resources or the plaintiff’s likelihood of filing for bankruptcy. But commenting on a party’s financial status could get you into hot water with the judge.
References to financial status in opening statements and closing arguments are usually improper because, as stated in Hoffman v Brandt (1966) 65 C2d 549, 552,
[j]ustice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case.
Courts have found improper arguments in which a plaintiff’s attorney focused on the relative greater wealth of a defendant in contrast to his or her client, or that the plaintiff was an object of charity. For example:
It was improper for a contractor suing the city of Los Angeles to refer to the city’s $60-million-per-year public works budget and to an amount larger than his claim as “peanuts” to contrast the wealth of the defendant to the relative poverty of the plaintiff. Warner Constr. Corp. v City of Los Angeles (1970) 2 C3d 285, 302 n22.
Arguing that a plaintiff is poor and would become a burden on the taxpayers and the object of charity was improper, but not prejudicial given the court’s admonishment. Hart v Wielt (1970) 4 CA3d 224.
Similarly, courts have found improper arguments in which a defendant’s attorney focused on how a verdict against the defendant would reduce the defendant to indigency or in which a defendant’s attorney simply focused on whether the defendant could pay a judgment. For example:
It was improper and constituted reversible error for defense counsel to argue that a verdict against his client would force the client to move into a home for the indigent. Hoffman v Brandt (1966) 65 C2d 549, 551.
For defense counsel to refer to a defendant’s ability or inability to pay a judgment, if rendered, is improper and may be reversible. Tomson v Kischassey (1956) 144 CA2d 363, 369.
Referring to financial status is just one area of potential misconduct during opening statements and closing arguments. Wondering what other areas are out-of-bounds? Check out CEB’s Persuasive Opening Statements and Closing Arguments, chap 3. And get practical pointers from expert trial attorneys on crafting and delivering effective opening statements and closing arguments in CEB’s program Effective Approaches to Opening Statements & Closing Arguments, available On Demand.
Other CEBblog™ posts you may find useful:
- 5 Tips for Crafting a Clear Opening Statement or Closing Argument
- Establishing Credibility in Plaintiff’s Opening Statement
- Should You Discuss Damages During Opening and Closing?
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