JURY ARGUMENT: CONTENT OF OPENING AND CLOSING

Keith JacksonRiley Jackson, P.C.2014 Alabama Law Weekly Tort Law ConferenceBirmingham, AlabamaSeptember 12, 2014

I. Introduction

This presentation addresses the content of opening statements and closing arguments to

the jury. With only three opportunities at trial to speak directly to the jurors, and one of those

opportunities limited in the sense that we are not to argue details of the case during voir dire, the

importance of shaping jurors’ perceptions in opening and reinforcing case themes in closing

cannot be overstated. Seminars are taught and focus groups are convened frequently to discuss

and explore how best to use or neutralize juror biases, preconceptions, and misconceptions to the

benefit of a litigant, all with the goal of gaining a measurable advantage over our opponents.

The valuable information that has been obtained on jurors’ biases and thought patterns

undeniably assists the advocate in shaping case themes and presentations, but our ability to use

this information during our conversations with jurors remains subject to law that, in many

instances, was developed decades ago. Much of the common law governing opening statements

and closing arguments was conceived at a time when the jury system for civil cases was widely

regarded as fair and just. Regardless of an individual attorney’s perspective on the causative

factors, be they “runaway verdicts” or methodical sorties of propaganda promulgated by pro-

business advocacy groups, it seems irrefutable that the juries we confront today bear little

resemblance to juries of the not-too-distant past where biases and predispositions are concerned.

How then does the prepared advocate utilize the rich insight into jurors’ minds that has

been developed in recent years? What are the limitations imposed upon us by law, and in what

areas are we perhaps doing too little to represent our clients as fully as possible? In preparing

this presentation, we examined the issues with which we have been confronted when preparing

and delivering openings and closings as well as commonly held beliefs among attorneys we

polled on these issues. The result was for us, and hopefully for the reader, a sometimes

surprising realization that certain disconnects exist between commonly held beliefs regarding

what is permissible and controlling precedent on the issue at hand.

Although a few of the allowed and disallowed statements and arguments to jurors that are

discussed in this paper are well-known and could be accurately determined by a first year law

student, the other extreme is that some of the conventional wisdom we have heard or in some

instances been taught regarding permitted argument is incorrect. Lying somewhere in the

middle, nuanced case law regarding many other statements and arguments creates opportunities

that often seem to be left untapped. For example, golden rule arguments are not subject to a

blanket prohibition. Only particular statements comprising part of a golden rule argument are

prohibited, with other golden rule type arguments available to counsel when correctly used. This

presentation will address bright line rules where they exist, but it will focus more on statements

and arguments available to advocates when used correctly and the parameters regarding such

correct usage.

“The only cases that can be won in the final argument are those that have not been previously lost. On the other hand, a good case can be lost in those fatal, final moments.” Gerry Spence, Win Your Case.

“Although the lawyer’s range of choice is circumscribed by the evidence, by the substantive law, by procedural rules, and by the stock scripts that shape everybody’s notion of what a closing argument should look like, lawyers nonetheless retain the power to construct widely diverse tales beneath a superficial semblance of sameness and conventionality.” Anthony G. Amsterdam & Randy Hertz, “An Analysis of Closing Arguments to a Jury”.

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II. General Rules

“Great latitude is permitted in arguments by counsel.” Ott v. Fox, 362 So. 2d 836, 840 (Ala. 1978).

“Attorneys have the right to try their cases as they see fit so long as they stay within the applicable statutes and rules.” Hinton & Sons v. Strahan, 266 Ala. 307, 313, 96 So. 2d 426, 431 (1957).

Opening

“[I]t is well established that the time, manner and character of a party’s opening statement to the jury regarding what he expects to prove are within the trial court's discretion, and a ruling on these matters is subject to reversal only when that discretion is abused to the prejudice of the party complaining.” T.K.S. v. State ex rel. M.S.B., 673 So. 2d 429, 434 (Ala. Civ. App. 1995).

Argument

“All our cases recognize that a considerable degree of latitude is allowed in argument.” Alabama Great S. R. Co. v. Gambrell, 262 Ala. 290, 295, 78 So. 2d 619, 622 (1955).

“The conduct and content of counsel’s argument have always been considered to be a matter for the sound discretion of the trial judge.” Pepsi Cola Bottling Co. of Luverne, Inc. v. Allen, 572 So. 2d 434, 436 (Ala. 1990).

“In addressing the jury, counsel must be allowed within legitimate bounds to select and pursue their own line of argument, their own methods of dealing with the testimony. This right is secured to parties at interest before the court by the Constitution (Const.1901, § 10).” Birmingham News Co. v. Payne, 230 Ala. 524, 528, 162 So. 116, 119 (1935).

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III. Facts in Evidence and All Reasonable Inferences

No debate exists regarding the fact that attorneys may argue both the facts presented in

evidence and all reasonable inferences that may be drawn therefrom. The one area in which

legitimate disagreement may exist among attorneys at trial involves the extent to which an

argument may exceed the limits of what constitutes an inference from an admitted fact.

Closing arguments “may rest upon facts in evidence [and] may extend to inferences

arising from those facts in evidence. Whether the closing argument exceeds these limits is

determined by the trial court in its discretion.” “[M]uch must be left to the enlightened judgment

of the trial court, with presumptions in favor of its rulings. Substantial injury must occur before

a trial court's rulings will be reversed.” Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317, 325

(Ala. 1987), quoting Adams v. State, 291 Ala. 224, 228, 279 So. 2d 788 (1973).

The extent to which inferences may be drawn, and the leeway given to attorneys in

arguing such inferences, was addressed in R. C. Bottling Co. v. Sorrells, 290 Ala. 187, 190, 275

So. 2d 131 (1973). “Every fact the testimony tends to show, every inference counsel may think

arises from the evidence, the credibility of the witnesses, as revealed by their manner, the

reasonableness of their story, and many other considerations, are legitimate subjects of criticism

and argument.” Id. at 134. “[T]hough the trial judge may use his discretion in controlling

counsel's arguments, he must not limit too narrowly counsel's right to draw inferences from

testimony before the court, and if he does so, reversible error is committed.” Id.

Likewise, “[c]onsiderable latitude is permitted counsel in arguing inferences from the

evidence. The right of counsel to pursue his own line of argument within legitimate bounds is a

constitutional right and as much discretion is allowed the trial court as is necessary to a due and

orderly procedure.” Louisville & N.R. Co. v. Tucker, 262 Ala. 570, 578, 80 So. 2d 288, 295

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(1955). “We will not too narrowly criticize arguments of counsel in the matter of inferences

drawn for illustration or figures of speech adopted in pressing a point.” Id.

It is of course not necessary for parties to agree that an inference results from an admitted

fact for the inference to be fair game for argument. There is a great deal of room for advocacy in

this arena. “[Counsel] may state or comment on all proper inferences from the evidence and may

draw conclusions from the evidence based on his own reasoning.” Small v. Columbiana Pole &

Timber Co., 433 So. 2d 1148, 1149 (Ala. 1983). “Traditionally, considerable latitude is allowed

counsel in arguing the evidence and the reasonable inferences to be drawn therefrom.” Barber

Pure Milk Co. v. Holmes, 264 Ala. 45, 56, 84 So. 2d 345, 354 (1955). If the opponent disagrees

that the inference argued results from an admitted fact, the opponent may make this point in

argument.

IV. Applicable Law.

All litigators have at one point likely shown or read to the jury during closing argument

portions of the jury charges that have been approved by the Court. Most judges hold charge

conferences prior to closing for this very reason. Most attorneys stop there and make no attempt

to read to the jury any other Alabama law. This is perfectly fine, provided that all of the

applicable law setting forth the safety rules at issue in a negligence case, the investigative

requirements in a bad faith case, the elements in a contract case, etc., have been included in

approved jury charges. But what happens when an attorney wants to read law to the jury when

that law is not contained within an approved jury charge? That depends on the judge.

The Alabama Court of Appeals, prior to the division split, considered this issue in City of

Anniston v. Oliver, 28 Ala. App. 390, 185 So. 187 (Ct. App. 1938). In that case, the appellant

took exception to the fact that the trial court refused to permit counsel to read as a part of his

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argument to the jury a particular code section. In refusing to reverse the trial court’s decision,

the City of Anniston court found as follows:

It is permissible for counsel in argument to read to the jury the law as it is written either in the Code or in published decisions of the Appellate Court of the State pertinent to the questions involved in the case on trial, and containing correct exposition of the law applicable thereto. Such is the ruling in many cases in this court and in the Supreme Court. City of Tuscaloosa v. Hill, 14 Ala. App. 541, 69 So. 486. But such permission is discretionary with the trial judge, and his refusal to permit such reading is not reversible error. The reason for this is obvious. The duty of the jury is to try the facts and apply such facts to the law as given them in charge by the court. It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court.

Id. at 393, 189-90. The court expressly stated with its ruling that it would be permissible for an

attorney to read statutory or case law to the jury in closing, but simultaneously left the decision

as to whether allow the same in a particular case to the trial judge.

The Alabama Supreme Court provided additional perspective on the issue in McCullough

v. L&N R. Co., 396 So. 2d 683 (Ala. 1981). McCullough involved a truck/train collision at a

signal-controlled crossing. The plaintiff alleged the signals were not working. The defendant

countered that it was a clear day, and the crossing was clearly marked both by signage and by

markings on the roadway in the direction of the plaintiff’s approach.

To his credit, the plaintiff’s counsel anticipated difficulty in getting past a “stop, look,

and listen” charge that he knew was probably coming in the jury instructions. Thus, counsel

argued that, “according to the rules of (the) road, if there is not a stop sign out there, you keep

going.” Id. at 685. Defense counsel objected, but not on the basis that plaintiff’s counsel was

reading law to the jury. Rather, the objection was that plaintiff’s counsel made an incorrect

statement of the law. Id. The trial court agreed.

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On appeal, the McCullough Court ruled that:

[T]he statement manifestly is one on counsel's view of existing law and not an argument on the facts of the case. Thus the trial judge was well within his discretionary authority to control argument by sustaining this objection . . . . Courts have a discretionary power . . . to require all propositions of mere law to be argued as such to the presiding judge, and not to the jury. The jury are to receive the law from the court, and not from either the counsel, or from text-books or adjudged cases. This is a part of the police-power, so to speak, of the court, often necessary to prevent confusion and insure the orderly administration of justice in the trial court.

Id.

This ruling seems to contradict City of Anniston v. Oliver, supra. But the Court then

cited City of Anniston. “Not infrequently counsel are permitted to argue legal propositions, even

to read legal propositions to the jury. However, as stated in City of Anniston v. Oliver . . . ,

‘such permission is discretionary with the trial judge, and his refusal to permit such reading is

not reversible error. The reason for this is obvious. The duty of the jury is to try the facts and

apply such facts to the law as given them in charge by the court’.” McCullough, 396 So. 2d at

685-86. Without further elaboration, the McCullough Court held that, “[p]erceiving no error in

the trial judge's action, we need not address the correctness of the counsel’s statement made in

argument.” Id. at 386.

Perhaps a more subtle but equally important ruling on this issue is found in Barber Pure

Milk Co. v. Holmes, 264 Ala. 45, 84 So. 2d 345 (1955). The facts at issue make for interesting

reading, as the injured plaintiff alleged that a Barber driver stopped a milk truck so that it was

partially blocking the pedestrian plaintiff’s path as she navigated an alley. The plaintiff’s

testimony was that the driver of the milk truck had dismounted his ride and was continuing his

work. As Mrs. Plaintiff walked around the end of the truck, the Barber driver “opened the rear

door in a sudden manner causing it to strike [plaintiff] in the head.” Id. at 48, 347. For its part,

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Barber presented a “negative” case and contended that none of its trucks could have been

involved in the injury as none of its trucks or employees were at the scene, and none of Barber’s

routine delivery routes required a truck to be in the alley across which the plaintiff was walking.

There were no other witnesses to the accident outside of the injured plaintiff.

In his closing argument, the plaintiff’s attorney wanted to highlight the point that his

client’s case turned on the veracity of the injured plaintiff, and rejecting her as a liar was the only

way a defense verdict could result. To do so, the plaintiff’s attorney took a stab at informing the

jury as to what constitutes perjury . . . sort of. Specifically, the attorney argued that:

So, it just boils down, let's just call a spade a spade, we are all grown men, just call a spade a spade, if you say by your verdict, gentlemen of the jury, that this good lady and her husband are not entitled to recover damages from Barber Pure Milk Company on this occasion, that doesn't mean anything in the world except this young lady willfully and purposely committed perjury.

Id. at 56, 354.

The defense attorney objected, and the trial court overruled the objection. The Alabama

Supreme Court refused to reverse, holding that “[t]raditionally, considerable latitude is allowed

counsel in arguing the evidence and the reasonable inferences to be drawn therefrom. Trial

courts will not be put in error in this particular unless there was a clear abuse of discretion, and

the argument objected to (sic) was of such a character that it could not be eradicated from the

minds of the jury by proper instruction.” Id.

By its language, one could argue that Barber Pure Milk Co. is limited in scope to the

appropriateness of the facts and reasonable inferences argument discussed above. By injecting

the word perjury into the equation, however, the plaintiff’s attorney was in some small way

informing the jury that lying under oath at trial constitutes perjury. A reasonable presumption

from this decision is that the plaintiff’s attorney would have been allowed to (and probably

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should have) read the definition of perjury from the Alabama Code and then made his argument.

The decision seems to indicate that doing so would have been allowable in the trial court’s

discretion. As the plaintiff’s attorney only made the argument and did not read the law,

however, the exact scope of the decision remains somewhat unclear.1

Clearly, the safest course is to push for inclusion of applicable law in jury instructions so

that counsel may simply forecast the instructions in closing without having to read to the jury

law that will not be given by the court. In today’s trials, it is difficult to imagine a trial court

looking kindly upon an attorney’s attempt to read law to the jury when the law is not included in

an upcoming charge. Based upon the foregoing case law, however, the attorney will be on solid

legal footing by at least attempting to make the argument. The trial court’s ruling on the almost

certain objection to result would then be given great deference on appeal. In the era of pattern

jury instructions, attorneys should approach such arguments very cautiously.

V. Credibility of Witnesses.

“[C]ounsel have the right to argue to the jury the issue of the credibility of the witnesses.”

Byars v. Alabama Power Co., 233 Ala. 533, 536, 172 So. 621, 623 (1937). “A party to a civil

cause is by this guaranteed the right to be heard by himself or counsel before any tribunal in this

state on all questions of law and credibility of the evidence, either of which may arise in the

case.” Brown v. Mobile Elec. Co., 207 Ala. 61, 64, 91 So. 802, 805 (1921). “[T]he credibility of

the evidence, having been submitted to the jury by the court, the counsel for each party had the

right to be heard thereon by argument to them.” Brown v. Mobile Elec. Co., 207 Ala. 61, 64, 91

So. 802, 805 (1921).

1For a more thorough examination, research WestLaw keynote 118.

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VI. Failure to Present Evidence.

The courtroom scene to which the law governing this argument is applicable may be

created in this manner. A hospital nurse who assessed a patient on a key date at issue in a

medical malpractice case in which the hospital’s care is criticized is no longer employed by the

hospital. The hospital contends during discovery that it has no idea where its former employee

may be, and it produces last known contact information that is outdated. The plaintiff’s attorney

cannot find the nurse despite diligent efforts. The plaintiff’s attorney wants to argue during the

trial that, between the hospital and its nursing staff, someone knows where the former employee

nurse is, and yet they did not call her to testify at trial. Their refusal to call the former employee

to testify must be based upon the fact that the hospital’s attorneys know what the nurse will say,

and they don’t like it. Allowed, or not allowed?

The scenario changes when, for example, references are made during trial to charting

written by a nurse employed by the hospital. The plaintiff does not call the nurse to testify and

makes no attempt to get the nurse under subpoena. The defendant hospital also does not call the

nurse. The plaintiff’s attorney wants to argue that the jury may infer that the Defendant did not

call the nurse to testify at trial because the nurse’s testimony would not have been favorable to

defendant. Allowed, or not allowed?

A third scenario arises in the expert witness context, particularly in medical malpractice

cases. Presume that a plaintiff sues a physician. The plaintiff presents expert testimony at trial

on subjects such as a vocational disability, life care planning, and associated costs. The

defendant decides not to lend additional credibility to these categories of damages by calling

experts to refute the numbers about which the plaintiffs’ experts testified. The plaintiff wants to

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highlight in closing the defendant’s failure to call an expert to refute the damages. That is surely

allowed, right?

As is likely obvious from the different scenarios, whether a party can argue the opposing

party’s failure to call a witness depends on the context. The general rule in Alabama is that an

attorney cannot criticize another party for failing to call a particular witness to testify as to a

material matter. This general rule may be overcome, however, if the evidence shows that the

witness was not equally available to the party leveling the criticism. Gamble, McElroy's

Alabama Evidence § 191.01(1) (4th ed. 1991).

Both the general rule and the excepting language are simultaneously set forth in case law.

“A party may not comment on the failure of his opponent to call a witness if that witness is

‘equally accessible’ to both parties.” Donaldson v. Buck, 333 So. 2d 786, 787 (Ala. 1976).

However, “[t]he fact that either party can subpoena a potential witness does not automatically

make that witness equally accessible.” Id. at 788.

The general rule should not be confused with an automatic rule. The Alabama Supreme

Court has specifically written in dicta that the general rule “is not an ‘automatic rule’.” Olympia

Spa v. Johnson, 547 So. 2d 80, 85 (Ala. 1989), quoting Black Belt Wood Co. v. Sessions, 514

So. 2d 1249 (Ala. 1986). “The trial judge must weigh the question of the ‘equal availability’ of

the witness in overruling or sustaining the objection.” Id. The Olympia Spa Court noted that the

trial court may consider factors to determine the equal availability of the witness. “One of the

factors that a trial judge can consider is whether the witness is amenable to service of process;

however, this is not the sole criterion.” Id. (internal citation omitted). “Another factor to

consider is whether the witness has some reason to favor one party over another.” Id.

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In Olympia Spa, the uncalled witness was a maintenance man who was a former

employee of the defendant spa. The plaintiff argued that the testimony of the maintenance man

was not equally accessible because “the maintenance man had a natural bias and predilection for

the defendants.” The spa countered that the maintenance man was a former employee and

therefore had no bias towards the spa. The Court determined that “[t]he trial court is in the best

position to make a determination regarding possible bias and weigh the claims of equal

availability.” Id.

“When the testimony of the witness would favor one party over the other, the witness is

not ‘equally accessible’.” See, e.g., Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d

101, 103 (Ala. 1982) (testimony of friend of plaintiff's likely would favor plaintiff); Drs. Lane,

Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254 (Ala. 1982) (potential witness who was a

physician was not equally accessible when his testimony likely would favor the defendant

physicians).

The equally accessible inquiry does not complete the necessary analysis. The uncalled

witness must also have knowledge of a material matter. Without such knowledge, it would

erroneous for a litigant to present jury argument regarding the opposition’s failure to call the

witness irrespective of equal availability. Edwards v. Allied Home Mortgage Capital Corp., 962

So. 2d 194, 213-14 (Ala. 2007), citing Gamble, McElroy's Alabama Evidence § 191.04(b)(5th

ed. 1995).

We must also note the distinction between a party’s failure to call a particular witness and

a particular type of witness, with the latter seemingly always being appropriate argument without

a showing of unequal accessibility. See, e.g., Pacifico v. Jackson, 562 So. 2d 174 (Ala. 1990).

Pacifico involved the following summation: “Now, in using your common sense about things,

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does this make any sense to you that on 8th Avenue and 20th Street we’ve got a medical school

and no telling how many neurologists are there that can measure nerves and do EMG tests. Have

you heard the voice of a single one?” Id. at 177. The opposing party took exception to the

argument.

The Court observed that “[t]he comment objected to does not refer to the defendant’s

failure to call a particular witness, but rather to his failure to produce a particular kind of

witness. In that sense, and when read in the context of the entire closing argument, it is clear that

the comment was directed to the failure of the defendant to counter the testimony of [the

plaintiff’s] neurologists, or, in other words, the comment was designed to point out the

defendant's failure to support his contentions.” Id. The Court found no error in the trial court’s

decision to allow the argument.

Another important example is contained within Williston v. Ard, 611 So. 2d 274 (Ala.

1992).2 The plaintiffs called a special education specialist to give her expert assessment and

evaluation of an injured plaintiff’s needs for rehabilitative programs, including physical therapy,

occupational therapy, and speech pathology. The physician defendant did not call an expert to

counter this testimony. It was not “prejudicial error for the plaintiffs’ counsel, in closing

argument, to note [the defendant’s] failure to call any expert witness to counter the testimony”

because “it appears that the purpose of the closing argument of plaintiffs’ counsel was to

demonstrate to the jury that [the doctor] had failed to present any evidence to dispute the

plaintiffs’ evidence concerning [the injured plaintiff’s] needs and the cost of providing those

needs.” Id. at 278-79.

The law in this area is well-developed and significantly fact-based. When practitioners

anticipate being confronted with this issue at trial, research of cases with similar fact patterns

2For a more thorough examination of this issue, research WestLaw keynote 122.

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will likely reveal the appropriate ruling and thus the appropriate course for the advocate to take

at trial. We must also note the following case excerpts:

a. Party’s Failure to Testify. “[W]here a Party in a civil suit is present at the trial, and fails or refuses to testify, his failure to testify may be commented upon in argument, and the fact that matters in issue are not peculiarly within the party's knowledge will not in and of itself furnish a sufficient ground to bar the adversary from commenting on the party's failure to testify.” Stegall v. Wylie, 291 Ala. 1, 7, 277 So. 2d 85, 90 (1973).

b. Failure to Call Present or Former Employee. “If a party, at the time of trial, has only one employee who is shown to have knowledge of a material matter, and that employee is not called as a witness, the opponent may comment on the party’s failure to call that employee as a witness.” Gamble, McElroy's Alabama Evidence § 191.01(1) (4th ed. 1991); Blue v. First Nat. Bank of Elba, 200 Ala. 129, 131, 75 So. 577, 579 (1917).

c. Failure of a Plaintiff to Call Treating Physician to Testify. A defendant generally cannot comment on this. “The general rule is when a witness is accessible to both parties, or his evidence would be cumulative, neither party can comment on his absence. Cooper v. Grubbs, 262 Ala. 519, 523, 80 So. 2d 284, 287-88 (1955). In Cooper, a treating physician’s name was given to the defendant, and the defendant’s representative interviewed him. Neither party had him summoned. Because the defendant knew the nature of his probable testimony, and made no effort to get him and did not seek a postponement for that purpose, the defendant could not comment on plaintiff’s failure to call the physician.

VII. Failure to Notify Defendant of Claim Pre-Suit.

The defendant is not entitled to prove or argue that the plaintiff, suing for personal

injuries, did not notify the defendant of his claim prior to the filing of the suit. Gamble,

McElroy’s Alabama Evidence § 193.08 (4th ed. 1991); Birmingham Elec. Co. v. Wildman, 119

Ala. 547, 24 So. 548 (1898) (ruling that the plaintiff owed no duty to defendant to notify it, or

give it any information, concerning the accident, previous to the commencement of the suit; and

the evidence sought to be elicited was not admissible for the sole purpose of enabling the jury to

draw an unfavorable inference from plaintiff’s omission to do what he was not required to do,

when there was no other evidence tending to establish such inference).

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VIII. Issues of Value of Life in Wrongful Death Cases.

The APJI on damages in a case governed by the Alabama Homicide Act reads as follows:

This is a claim for the wrongful death of (name of decedent). The damages in this case are punitive and not compensatory. Punitive damages are awarded to preserve human life, to punish (name of defendant) for (his/her/its) wrongful conduct, and to deter or discourage (name of defendant) and others from doing the same or similar wrongs in the future. The amount of damages must be directly related to (name of defendant)’s culpability, and by that I mean how bad (his/her) wrongful conduct was. You do not consider the monetary value of (name of decedent)’s life because the damages are not to compensate (name of plaintiff) or (name of decedent)’s family from a monetary standpoint because of (his/her) death. The amount you award is within your discretion based on the evidence and the guidelines in this instruction.

APJI 11.28.

The rationale underlying the Alabama Wrongful Death Act, which allows recovery of

punitive damages only, “rests upon the divine concept that all human life is precious.” Estes

Health Care Centers, Inc. v. Bannerman, 411 So. 2d 109, 113 (Ala. 1982). There is no recovery

for the value of a single life. Because the purpose of the Act is in part to preserve the dignity of

human life, however, “in argument counsel must distinguish between the value of human life in

general, as opposed to the value of a particular life - a distinction that is not always easy to

articulate.” Atkins v. Lee, 603 So. 2d 937, 942 (Ala. 1992).

The Atkins Court was considering argument regarding the “unique qualities of the

individual.” The Court noted that such an argument blurs the distinction between the value of a

particular life and human life in general, but “subsequent references to the value of human life in

general, such as the acknowledgment that ‘all of us’ are unique and the statement regarding the

‘intrinsic value of life,’ placed the argument in the proper context and rendered it reasonably

susceptible of the proper construction.” Id. at 942.

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IX. The Golden Rule.

“In everything, therefore, treat people the same way you want them to treat you, for this

is the Law and the Prophets.” Matt. 7:12. Although the New Testament Golden Rule may be the

one that comes immediately to mind for some, the principle underlying the rule, also known as

the ethic of reciprocity, existed long before Christ’s time on earth and continued to be taught

thereafter. The principle was taught by Confucius and appears not only in Christianity, but also

in Hinduism, Buddhism, the teachings of Muhammad, and most other world religions.3

Socrates has been credited with expressing the negative version of the Golden Rule, “Do

not do to others that which would anger you if others did it to you.” Plato has been credited with

“May I do to others as I would that they should do unto me.” Regardless of which version of the

Golden Rule one may reference or the source from which it is derived, a single directive

permeates throughout: A demand that all people treat others in a manner in which they

themselves would like to be treated.

The ethic of reciprocity necessarily describes a two-way street. By following the ethic or

rule, one enters into a mutually beneficial relationship with others that involves both sides

mutually and equally. I do to you = you do to me. Whether the rule is described as one of

empathy, humanism, or religion, or even if we choose to think of the rule only in psychological

terms as a form of transference in which one transfers feelings for himself or herself to another,

the cornerstone of the rule is constant and consistent. We teach it to our children, we give

thought to it when making choices among actions that may negatively affect others, and we

regularly employ it in our personal ethical balancing tests.

3 W.A. Spooner, “The Golden Rule,” in James Hastings, ed. Encyclopedia of Religion and Ethics, Vol. 6 (New York: Charles Scribner's Sons, 1914) pp. 310–12; Simon, Blackburn (2001). Ethics: A Very Short Introduction. Oxford: Oxford University Press. p. 101.

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Given that the rule permeates our various religions and our personal ethics, the question

then is where the problem arises when the rule is employed in the civil courtroom. The answer

lies both in the nature of a trial and in the attempted use of the concept at trial. Because courts

eschew sympathy in the courtroom (see pretty much every decision on that subject), asking

particular jurors to do for the plaintiff what they would like done for them under similar

circumstances arguably crosses the line. But does it really? In all instances? Not necessarily.

The conventional wisdom is that an attorney cannot make an argument to a juror to put

himself or herself in the plaintiff’s position, but the conventional wisdom is only partly true.

“Generally, an appeal to the jury’s sympathy during closing argument by inviting the jurors,

individually, to stand in the shoes of the litigant is considered improper. Case law demonstrates,

however, that the courts have not been overly restrictive in their application of this rule.”

Fountain v. Phillips, 439 So. 2d 59, 63 (Ala. 1983). Encapsulated in those two sentences we find

(a) a statement of the general rule, and (b) an acknowledgment by the Alabama Supreme Court

that the general rule really is not all that general in its applicability.

Fountain involved an action to quiet title filed in 1973. The argument at issue in

Fountain was as follows:

Here five years after the death of Gilmer Phillips these claims cloud everything involved in his estate. Ladies and Gentlemen, we are dealing with serious business here. The same thing could happen to you. (Objection made by defense and overruled by trial court.) What I started to say is that the same thing could happen to you or to your family or your estate if people are allowed to come in and file documents like this which we say are forgeries, spurious, illegal and have no legal validity and tie up your estate for years and years and years and require your people to litigate. This suit was filed in 1973 in an effort by [Plaintiffs’ first lawyer, now deceased] to clear this title. We are still litigating in 1982 nine years later.

Id. at 62.

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The appellant argued that the trial court erred in overruling its objection to this “Golden

Rule” argument. The Court declined to reverse, finding that “when the objected to portion of the

argument in the instant case is viewed in its full context, we cannot say that ‘these remarks were

so improper and prejudicial as to justify a reversal of the trial court’. The reluctance of the

courts to find prejudicial error in these situations finds its motivation in the countervailing rule

‘that great latitude should be given counsel in the content and scope of their closing arguments’.”

Id. at 64 (internal citations omitted). Although the argument in Fountain was not expressly a “do

for them as you would have them do for you” argument, it clearly invited the jurors to envision

their own families in a similar situation. The Court focused on the context of the argument and

found no error in allowing it.

An argument that more closely approaches an express Golden Rule request was at issue

in British Gen. Ins. Co. v. Simpson Sales Co., 265 Ala. 683, 93 So. 2d 763 (1957). The

plaintiff’s counsel in that case argued as follows:

Now, the British General Insurance Company says oh, no, we can’t insure that property. We can’t pay you for that. You can look at this Agency Agreement, and you can see we can’t insure that property. You can see we can’t go any farther than Jefferson County, that is as far as we can go. We can’t insure it anywhere else, so you are just out, big boy, we are sorry. How would you like to have that happen to you?

Id. at 689, 768.

The issue in British General was whether the plaintiff was insured. Plaintiff’s counsel

contended that the plaintiff was led by the insurance agent to believe that he was covered. The

Court found that “[w]e do not think these remarks were so improper and prejudicial as to justify

a reversal of the trial court. It is generally held that it is improper to ask the jury to divest

themselves of their impartial position and place themselves in the shoes of the plaintiff.

However, we have said that we ‘will not too narrowly criticize arguments of counsel in the

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matter of inferences drawn for illustration or figures of speech adopted in pressing a point’.” Id.

at 689, 768-69.

In contrast, the plaintiff’s attorney went too far in a trucking collision case, Estis

Trucking Co., Inc. v. Hammond, 387 So. 2d 768, 774 (Ala. 1980). At the end of a series of

numerous questionable arguments that drew objections and curative instructions from the trial

court, the plaintiff’s attorney argued the following:

Ladies and gentlemen of the jury, I have no reluctance in asking you to grant this lady $250,000.00 for the injury she has suffered. I have absolutely no reluctance, none whatsoever. If somebody told you that you were going to go through that wreck, and go through what we have shown here that she has gone through since then. . . . (Objection made and overruled with no curative instruction).

Id. at 771.

The plaintiff received a verdict, but the Court reversed it and remanded the case for a new

trial. In an earlier argument, the plaintiff’s attorney allegedly tried to inject the defendant’s

wealth. On both occasions, an objection resulted, but no curative instruction was given.

The lack of a curative instruction is an important factor in Estis Trucking. “In a case of

improper argument where the trial judge overrules objection and fails to instruct the jury as to

impropriety with direction to disregard, the test upon appeal is not that the argument did

unlawfully influence the jury, but whether it might have done so.” Id. In contrast, “[i]n a case

where objection to improper argument is made and sustained, with immediate and strong action

by the trial court instructing the jury that such argument was not correct and admonishing them

not to consider it, the test on motion for new trial and on appeal is whether the argument was so

harmful and prejudicial that its influence was not or could not be eradicated by the action of the

court.” Id. at 771-72. If a trial court applies this test and denies a motion for new trial, its ruling

is presumed on appeal to be correct. Id.

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It is also important to know that the Estis Trucking Court was not considering only the

Golden Rule argument. It was considering the cumulative effect of prior statements made by

plaintiff’s counsel that the trucking company hired an expensive lawyer who handled cases with

larger verdicts across Alabama than what was being requested of the jury in Estis Trucking, and

the defendant could have afforded a better photograph, along with the Golden Rule argument

quoted above. “We find that the cumulative effect of these two statements, coupled with the

previously noted comments on the evidence made by plaintiffs' attorney during the course of

trial, was so poisonous and so prejudicial to defendants in this case that the argument was

ineradicable, notwithstanding the trial court's instruction to the jury.” Id. at 773. “The argument

here presented was an appeal to the jurors' feelings and passion, tantamount to requesting the

jurors to hold in favor of the plaintiffs based upon the jurors' sympathy for Mrs. Hammond. A

jury verdict reached in favor of any party on the basis of bias, prejudice or sympathy must be set

aside.” Id. at 774.

We find another instructive case in Allen v. Mobile Interstate Piledrivers, 475 So. 2d 530

(Ala. 1985). Allen was a case filed under the Jones Act regarding an injury an employee

suffered when he fell from a ladder. The case came to the Supreme Court in an interesting

procedural posture. The employee received a verdict, but the trial court granted the defendant’s

JNOV. On appeal, the defendant criticized the trial court’s ruling with respect to a Golden Rule

argument by plaintiff’s counsel. Among other matters, the following argument by the plaintiff’s

counsel was at issue:

But here is one way I like to look at it: Let’s picture a line of people, about a dozen people standing up in front of a table and a man is sitting there and he has got a blank check there, and he tells that line of people, ‘I’m ready to write you a check’ - they are 31 or 32 years old, they are working men and women who have to use their bodies to get the job done, and he is telling them, ‘Here is what I'm

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going to do, you let me drop you in a twenty-one to twenty-two foot hole on a slab of concrete’-

The defense objected. Plaintiff’s counsel responded that “I’m not talking about the jury.”

Id. at 537. The trial court overruled the objection with no curative instruction. The plaintiff

received a verdict, and the defendant filed a motion for JNOV, which was granted by the trial

court on an issue unrelated to our topic. During plaintiff’s appeal of the JNOV ruling, the

defendant argued that the trial court’s decision to overrule his objection to the plaintiff’s Golden

Rule argument was error because it was “an appeal to the jury’s sympathy by inviting the jurors

to stand in plaintiff's position.”

The Court reversed the trial court’s grant of JNOV in favor of the defendant and

remanded the case with an instruction to reinstate the verdict and enter judgment in favor of the

plaintiff. On the Golden Rule issue, the Court found that “the argument does not directly invite

the jurors to put themselves in plaintiff's position, but rather refers to some unspecified

imaginary individuals.” Although the defendant argued that the “dozen people” was an obvious

reference to the jury, the Court noted that the dozen people were “characterized as ‘31 or 32

years old, . . . working men and women who have to use their bodies to get the job done’. We

cannot assume that all of the jurors fit this description.” Id. at 537-38.

The Allen Court acknowledged that a request for jurors to put themselves in the place of

the plaintiff is an improper argument. The Court also noted, however, that “courts have not been

overly restrictive in applying this rule.” Id. at 537 (internal citations omitted). “The reluctance

of the courts to find prejudicial error in these situations finds its motivation in the countervailing

rule ‘that great latitude should be given counsel in the content and scope of their closing

arguments’.” Id. “A bare invitation for the jurors to put themselves in the place of the plaintiff

without an appeal to the jurors’ passions and feelings has been held to be nonprejudicial.” Id.

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With respect to the argument posited by plaintiff’s counsel, the Court noted that counsel

did not specifically ask the jurors to place themselves in plaintiff’s position and no effort was

made to garner sympathy. Rather, “[t]he argument is designed to make the jury realize that a

reasonable person in plaintiff’s position would not agree to being injured.” Id. at 537-38.

A. Scriptural References

We could not discuss the Golden Rule argument in the Bible belt without addressing the

question of whether scriptural quotations by counsel in statements or argument to the jury are

appropriate. Although such references must be made for a proper purpose and are never to be

made lightly for obvious reasons, they are legally appropriate under Alabama law.

A prosecutor tested this rule in Ex parte Waldrop, 459 So. 2d 959 (Ala. 1984). In his

closing argument in a capital case, the prosecutor argued that “[o]ur legislature, you know we are

governed by the laws of God and man. And I’ll submit to you the laws of God, He believed in

capital punishment and you will find it many times throughout the Bible.” Id. at 962-63. The

defense attorney argued that the prosecutor’s argument was based upon extrinsic and unproven

facts and was “motivated purely to incite the emotions and passions of the jurors.” The Alabama

Supreme Court disagreed and found that “counsel’s argument should not be so restricted as to

prevent reference, by way of illustration, . . . to principles of divine law or biblical teachings.”

Id., quoting Poole v. State, 292 Ala. 590, 298 So. 2d 89 (1974).

While counsel clearly have the right to quote or reference scripture, courts have imposed

a clear and reasonable limitation upon this right. Counsel may not argue that scriptural law

should supplant Alabama law. See Wade v. State, 381 So. 2d 1057 (Ala. Crim. App. 1980) writ

denied sub nom. Ex parte Wade, 381 So. 2d 1062 (Ala. 1980). In Wade, a criminal case

involving an alleged rape, the trial court refused to allow the defense attorney to argue that “the

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Bible says thou shalt not convict under the testimony of one witness.” The defense attorney took

exception to this restriction and included the issue in the appeal of the defendant’s conviction.

The court acknowledged that, under Mosaic law, “the concurrent testimony of at least

two witnesses was required to establish guilt of a capital crime.” Id. at 1062 (numerous Biblical

citations omitted). The court then noted contrary Alabama law that “the uncorroborated

testimony of the prosecutrix is sufficient to sustain a conviction for rape.” Id. (internal citations

omitted). The court then stated Alabama law that, “while the law of the case must be taken from

the court and not from either counsel, it is improper for either attorney to misstate the law

applicable to the case.” Id. (internal citations omitted). “Likewise, arguments which tend to

mislead or confuse the jury on the applicable law are improper.” Id. (internal citations omitted).

Based upon the foregoing, the court held that “it is clear that the judge was not attempting to

prevent defense counsel from quoting the Bible in his argument but was directing counsel to

‘confine his argument to the law in the State of Alabama’.” Id.

This paper does not provide an exhaustive review of Alabama case law on the Golden

Rule argument, but the sampling above fairly represents current jurisprudence on this issue. As

long as the advocate refrains from asking jurors to put themselves in the plaintiff’s position for

purposes of generating sympathy, arguments that may fairly be considered “Golden Rule”

arguments should be permitted. The key is in the wording, and these are not arguments to make

without adequate preparation on the front end. Likewise, the use of scripture is allowed, but not

if the use of scripture is intended to or would suggest that the jury should ignore Alabama law in

favor of scriptural directives.

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X. Wealth of Litigants, Insurance, Etc.

If any confusion exists on this subject, it is likely on the issue of whether the prohibition

against referring to a party’s wealth applies even handedly to both sides. It does. In the first

case considering the question of whether the prohibition applied to a defense lawyer referring to

a plaintiff’s wealth, the Alabama Supreme Court ruled as follows:

There are numerous decisions by this court, and the former Court of Appeals relating to the impropriety of argument of counsel for a plaintiff referring to the wealth of a defendant or the poverty of a plaintiff. We have not however found a case in this jurisdiction concerning a reference by defense counsel to the wealth of a plaintiff. Since the sine qua non of a trial is to obtain a true verdict or judgment based alone upon the evidence, any reference to wealth or economic condition of a party by opposing counsel is as invidious and prejudicial in the one instance as the other.

Allison v. Acton-Etheridge Coal Co., Inc., 289 Ala. 443, 446, 268 So. 2d 725, 728 (1972).

It is also well-established that a plaintiff may not refer to the availability of insurance to

pay any verdict against a defendant. “There can scarcely be made to a jury a more seductive and

insidious suggestion than that a verdict for damages against the defendant before them will be

visited, not upon that defendant, but upon some invisible corporation whose business it is to

stand for and pay such damages.” Standridge v. Martin, 203 Ala. 486, 84 So. 266, 267 (1919).

XI. Curative (or Retaliatory) Admissibility

It is well and good for courts to impose rules governing argument by counsel, but what

happens when opposing counsel opens the door in opening or closing to otherwise impermissible

argument? It is well known that Alabama recognizes the need for curative admissibility when

the door to otherwise impermissible argument or evidence is opened by an opponent during the

evidentiary phase of trial. See, e.g., Mut. Sav. Life Ins. Co. v. Smith, 765 So. 2d 652 (Ala. Civ.

App. 1998) writ quashed as improvidently granted sub nom. Ex parte Mut. Sav. Life Ins. Co.,

765 So. 2d 659 (Ala. 2000); see also Freeman v. State, 555 So. 2d 196, 206 (Ala. Crim. App.

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1988) aff'd sub nom. Ex parte Freeman, 555 So. 2d 215 (Ala. 1989) (holding that “if a party

introduces illegal evidence, his opponent has the right to rebut such evidence with other illegal

evidence”).

The Smith court majority relied upon and quoted Dean Gamble’s treatise, which reads in

part that “[w]henever one addresses a particular subject, even if impermissibly so, this then

permits the opponent to rebut such evidence under the doctrine of ‘curative admissibility.’ Some

writers and courts have referred to this as ‘retaliatory admissibility’.” Id. at 655, quoting 1

Charles W. Gamble, McElroy's Alabama Evidence, § 189.05(1) (5th ed. 1996). The Smith court

also relied upon Baldwin Mut. Ins. Co. v. Brantley, 518 So. 2d 32 (Ala.1987). In Brantley, the

Court addressed the question of whether testimony from an insurance agent that his employer

was “a very small company” opened the door to evidence concerning how many policyholders

the company truly had in Alabama. The Court held that allowing such rebuttal evidence “was

proper impeachment procedure.” Mut. Sav. Life Ins. Co., 765 So. 2d at 655, quoting Baldwin

Mut. Ins. Co., 518 So.2d at 35.

The doctrine of curative admissibility extends beyond impermissible evidence and

applies directly to statements made by counsel in the presence of the jury. The Smith court was

not considering the question of curative admissibility in the context of an opponent opening the

door during the presentation of evidence. Rather, the defense counsel made statements during

opening concerning the defendant’s size, “including a declaration that [the defendant] was a

‘small company’ whose employees owned 78 percent of the company.” Id. at 654. The

plaintiff’s attorney argued to the trial judge that “these statements ‘opened the door’ and that he

was entitled to ‘respond in kind’ to them by eliciting testimony from a corporate representative

of [the defendant] concerning ‘how much money the company made last year’.” Id. The trial

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court allowed plaintiff’s counsel to elicit testimony concerning the number of states in which the

defendant conducted business, but the court did not allow counsel to present evidence of the

defendant’s revenues during the previous year. Id.

In a holding notable for applying the curative admissibility doctrine to attorney

statements or argument, the Smith court ruled that “an argument referring to a corporate party as

a ‘small company’ would open the door to evidence of corporate profits and receipts that would

tend to impeach such a statement.” Id. at 655 (emph. added). The court also ruled that a

contemporaneous objection by the plaintiff’s attorney was not necessary to preserve the issue for

appeal. The court acknowledged that, in such a situation, “[t]here may well be tactical reasons

for not objecting to evidence that ‘opens the door’ to rebuttal evidence of wealth.” Id. In any

event, the doctrine of curative admissibility “is not predicated upon an objection from the party

seeking to retaliate. Instead, . . . the doctrine is based upon the right of the retaliating party to

present evidence concerning issues in the case once another party has ‘opened the door’ to those

issues.” Id.

Attorneys may also use argument, in addition to evidence, to respond to inappropriate

statements or arguments. “Arguments which are replies in kind or are provoked by arguments of

opposing counsel do not amount to reversible error.” Osborne Truck Lines, Inc. v. Langston,

454 So. 2d 1317, 1322 (Ala. 1984), citing Lawrence v. Alabama Power Co., 385 So. 2d 986

(Ala. 1980); Central of Georgia Ry. Co. v. Phillips, 286 Ala. 365, 240 So. 2d 118 (1970); St.

Clair County v. Bukacek, 272 Ala. 323, 131 So. 2d 683 (1961).

Courts have specifically held that curative arguments are allowed during closing, or

summation. In Freeman v. State, supra, the court was considering a prosecutor’s statement

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during closing argument. The court found that the statement, although otherwise prejudicial and

inappropriate, was allowable under the curative admissibility doctrine. Id. at 206.

Alabama law is well-settled that the doctrine of curative admissibility applies to rebut not

only evidence presented at trial, but also statements made by counsel during openings or

closings. Because “[a]rguments which are . . . provoked by arguments of opposing counsel do

not amount to reversible error,” as noted by the Osborne Truck Lines court, counsel should be

prepared to provide trial courts with case law support when an adversary injects inappropriate

statements or arguments to the jury and be prepared to respond with curative arguments.

Although the curative arguments may otherwise be inappropriate or prejudicial, once the other

side has opened the door, the prejudicial effect of such arguments ceases to be an issue.

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