Theory v. Practice, Part II.

On February 28, we observed the chasm between theory and practice in connection with opening statements in trials.

Consider the following thoughtful excerpts from a law professor's article discussing this phenomenon and extending it to closing arguments. (D. Bernstein, "The Abuse of Opening Statements and Closing Arguments in Civil Litigation", Civil Justice Memo 38 [Manhattan Institute]; read it here.)

"Attorneys are traditionally barred from introducing inadmissible materials during opening statements and closing arguments, engaging in inflammatory rhetoric, misstating the law, and otherwise abusing their prerogatives. [footnote omitted.]

"In practice, however, courts have been quite deferential to attorneys, and generally have allowed them to go beyond appropriate argument to the jury. ... There are two primary reasons why judges have allowed parties to abuse opening statements.... One is ideological, the other is practical.

"The ideological explanation is the popularity of the theory, held explicitly or implicitly by many judges, lawyers and law professors, that the purpose of civil jury trials is not to ensure that current law is correctly applied to the facts. Rather, juries are seen as a check on legal rigidity and are expected to be indicators of the direction of the law’s evolution. [footnote omitted.] Juries therefore are not expected to strictly apply the facts to the law in all circumstances. Instead, juries are expected to base their verdicts on 'extralegal values' or 'their sense of justice.' [footnote omitted.] Judges have therefore been inclined to acquiesce to attorneys’ unduly emotional appeals in jury argument, even when the attorneys have been technically in violation of the rules of proper argument.

"The practical explanation for lack of supervision of jury argument is that the issue of the abuse of jury argument has simply not attracted the attention of the legal establishment. The issue of proper jury argument receives little attention in law schools. The law regarding opening statements and closing arguments is rarely taught as part of either evidence or civil procedure. Instead, material about opening statements and closing arguments is usually relegated to trial advocacy courses, if it is covered at all. These courses, and the largely adjunct faculty who teach them, focus on winning techniques, not the rules. Not surprisingly, the academic literature on appropriate jury argument is sparse.

"Nevertheless, over the last decade or so judges have become more willing to police jury argument. Part of the reason for this shift in behavior is the increasing interest in what Peter Huber calls the 'rule of fact'—ensuring legal decisions actually conform to the underlying evidence. Interest in the rule of fact has led to more liberal rules for the granting of summary judgment, a crackdown on junk science, and it seems, a nascent crackdown on attorneys who make illicit, unfairly prejudicial arguments to the jury.

"Equally important, attorneys have simply exhausted the judiciary’s patience. As the stakes of civil litigation have grown, attorneys increasingly are tempted to stretch the boundaries of acceptable argument, perhaps to the breaking point. One commentator finds that 'final argument has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors’ sympathies and prejudices.' [footnote omitted.] This attorney notes that 'the final argument of a trial is often viewed as a legal battleground in which almost anything goes.'

"A representative example of this 'anything goes' mentality among attorneys occurred in a personal injury lawsuit filed by a plaintiff injured in an accident at Disney World. [footnote omitted.] In closing arguments, the plaintiff’s attorney labeled one defense witness a 'good soldier' and another a 'joker.' Counsel for plaintiff also accused the defendant several times of having 'ripped off the plaintiff’s thumb,' and characterized the defendant as 'some nickel and dime carnival' throwing 'pixie dust' in an attempt to mislead the jury. The jurors were told that the defendant’s attorney thought they were 'fools' and 'idiots.'" (Id.)

Professor Bernstein concludes his piece with remedies for the abuse of jury argument, including “invited response,” (meaning, giving the other party leeway in responding in kind); limiting instructions (such as ignore what he or she just said), and even granting mistrials. "More recently, courts have been issuing pre-trial orders in limine banning the attorneys from raising certain issues, and exercising direct judicial control over jury argument."

The article places the onus almost entirely on judges to police their courtrooms, as if attorneys should be assumed to be out of control. While I agree that courts can and probably should fulfill a policing role, it seems that healthy burden should be placed on attorneys to act ethically and professionally. Also, Professor Berstein is correct that law schools should do a better job emphasizing practical courses such as trial advocacy. It's not even a required course in most law schools; it should be.