As My Grand Pappy Always Told His Dog - Personal Stories In Closing
We've written before about Seven Things You Can't Say in Closing, arguments that are so obviously prohibited that you invite a mistrial motion just by saying them out loud. We've also discussed how much you can turn summation into a sermon and/or insinuate that God has a rooting interest in the outcome of your trial. But for every bright line rule there are a whole host of “potentially problematic” trial tactics that may or may not lead to appellate issues later down the line. And one of those tactics is the use of personal anecdotes by attorneys.
If you've tried enough cases, particularly in the personal injury or criminal context, you've probably encountered this phenomenon. The other side's attorney decides to turn closing argument into “story time.” Out of nowhere, they launch into some modern version of Aesop's Fables – a tale from their life with a moral message or some suspiciously on-point bit of folk wisdom designed to suggest that your client is a liar or a scoundrel. Sometimes this is in service of an actual argument about the case. But sometimes the “analogy” is little more than a pretext to drop some sympathetic line about the attorney’s biography (“as my pastor always tells me…”) (“as I lovingly tell my children…”) (“one thing I learned while saving the life of a fellow marine…”). Whether these stories are true is always highly suspect and obviously impossible to confirm.
This tactic can be ham-fisted and clownish, but can also be effective, and in the middle of a closing argument it can be difficult to tell whether it's landing or not. This can make it difficult to determine whether you should object. And like any argument, there is always the possibility that it sways some jurors and irritates others. But what options do you have if opposing counsel decides to “make it personal” halfway through summation? Can you object or even seek a mistrial because of an improper attorney anecdote?
The Eighth Circuit examined this issue in Gilster v. Primebank, 747 F.3d 1007 (8th Cir. 2014). The plaintiff was a bank employee who claimed that she had been illegally fired in retaliation for reporting sexual harassment by her superior. In closing argument, plaintiff's counsel concluded her remarks with a story from her own past:
Mindy told you when she made her complaint back in 2009 she feared . . . retaliation and that making her complaints and what effect it would have on her career.
Mindy Gilster had the strength to make that complaint back on July 2, 2009. I sure didn't. Back in 2006 I was sexually harassed by a professor at Drake, but I was on my way out. I was a third-year law student, and I had been a student bar association president for the last year, and I was well respected and liked by my peers. I had a great relationship with the dean of the law school because of my role as president. But I refused to be that --
[DEFENSE COUNSEL]: Excuse me, counsel. Your Honor, I do not think this is appropriate for argument.
THE COURT: Overruled.
MS. TIMMER: And I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor.
Given my calling as a civil rights lawyer, I am constantly amazed by the strength and courage that my clients have when facing their employers and supervisors, the people who hold all the power. It is my sincere hope that one day my daughter, my friends, my sisters will live in a community where they will not be silenced by fear. And you can ensure this happens with your verdict.
I am fortunate that in the course of my life and in my work I've had the opportunity to represent these women who are so strong to make these complaints. I'm fortunate in my life that for the last two years I've had the honor of representing Miss Mindy Gilster and that I got to try this case. But the power and responsibility that I've held on Mindy's case for the last two years is now over, and I am particularly fortunate that I can give the power and responsibility for correcting injustices like those we have seen in this courtroom to somebody else. I give it to you.
Id. at 1010. In evaluating a post-trial motion, the District Court concluded that it should have sustained the objection, but held the error harmless in light of its boilerplate jury instructions that the arguments of counsel were not evidence. The Eighth Circuit reversed and ordered a new trial. It found that the comments, were a “deliberate strategic choice” and were intentionally made “when they would have the greatest emotional impact on the jury, and when opposing counsel would have no opportunity to respond.” The court likened the story to a prohibited “conscience of the community” argument by a prosecutor and noted that the personal anecdote clearly violated the prohibition on arguments about facts not supported by evidence not in the record.
A similar result was reached by an Illinois appellate court in People v. Shief, 312 Ill. App. 3d 673 (Ill. App. 2000). In that case the defendant was convicted of armed robbery and attempted sexual assault based upon the identification testimony of the victim. Defense counsel argued that the description given to the police by the victim at the time of the incident did not match the defendant. In an effort to explain this discrepancy the prosecutor told the following story in closing:
Now, let's talk about description versus recognition. A description is a person's ability to describe something, to say something, to use words to characterize something. On August 1, 1997, a nurse walked into a hospital room and told me my son wasn't going to make it.
* * *
At that time, I cannot tell you what she looked like. But I know that I would recognize her in a heart beat. But today I would tell her she was wrong.
Id. at 677. A divided panel reversed and remanded for a new trial, finding that the prosecutor's anecdote was an improper use of facts outside the record to bolster the credibility of his witness. The dissent, while not strictly endorsing the story, argued that there was no proof that the comments necessarily altered the result of the trial.
While appellate courts will sometimes reverse based upon over the top emotional anecdotes alone, the more typical reversal is something like the situation in Muhammad v. Toys "R" Us, 668 So. 2d 254 (Fla. Dist. Ct. App. 1996). The plaintiff there sued a toy store for selling him a defective bicycle for his child. The attorney for Toys-”R”-Us made a series of outlandish comments during trial, including suggesting to the jury that the plaintiff had already settled with the bike manufacturer, offering his personal opinion on whether photographic evidence fairly depicted the hill where the injuries occurred, and telling the jury that they should not give deposition testimony the same weight as in-person evidence.
In addition to these comments, the attorney also offered the following anecdote:
I'm going to tell you a little story. My wife loves to shop at Dillard's. About a year ago Dora (phonetic), the one I told you never gave us any problems, she's shopping. I'm with my wife. And she's kind of in tears. You could tell she was upset. She's 11 years old. I asked, you know what's wrong. Well, Dora had a purse that she bought at Dillard's two weeks before. One of the clerks had accused her, questioned her, thinking that she had stolen it. The clerk wasn't being mean. It was an accident. You know, it looked like the one she had. Well, let me tell you something, I seen [sic] something that is the most powerful thing you could ever see, and that's a mother's protection for her child. My wife is one of the sweetest, most demure persons. It was nasty. She grabbed my daughter. She went and she said --
Plaintiff's counsel interposed an objection, which the trial judge sustained, directing counsel to make his point, following which defense counsel added the following:
The point is my wife has not gone back to Dillard's for a year. Do you think if Mr. Muhammad, if Mrs. Muhammad thought the next day that those brakes at -- Toys "R" Us did something incorrect, do you think she would have bought the bike six weeks later? Why -when she was coming from Bridgewood, why didn't she go to Wal-Mart, you heard that, and buy American? Why did she go the extra distance to go to Toys "R" Us? Why didn't she go to Kmart than go to Toys "R" Us? Why didn't she go to Sears than go to Toys "R" Us? Those are closer. Do you think her husband blamed Toys "R" Us when he picked up that bike six weeks later? No, he did not.
Id. at 257. The trial court denied plaintiff's motion for a mistrial. On review, the Florida appellate court held that “standing alone these comments would not merit reversal.” Id. at 258. But the anecdote as one among many improper comments showed that counsel intended to “push the envelope of propriety” and, taken together justified a new trial.
The tension here is that storytelling and analogy are fixtures of closing argument. Because of this, many courts are loathed to impose hard and fast rules about introducing extraneous narratives in closing, even when they might seem wholly irrelevant and prejudicial. It's a rare court where you can question a witness in detail about “Daniel in the lion’s den” or “Salome's dance of the seven veils.” But come closing argument, you can often talk about these things at length, despite the fact that they fall wildly outside of what could be considered relevant evidence. For that reason personal anecdotes are often given a presumptive pass by courts until such time as they appear obviously prejudicial. But by this point the damage may have already been done.
As such, if you are concerned about the prospect that opposing counsel may go down this road, your best bet may be a motion in limine. While many judges will reflexively overrule oral objections to anecdotes made in the middle of closing, it's a much harder sell for opposing counsel to explain, in the abstract, why his or her summation has to contain biographical details from his or her life. And surfacing this issue early also increases the likelihood that an objection will ultimately be sustained should the opportunity arise.
