A Guide to Openings and Summations: Part Five

part5

The Law of Summations: Don’t Cross the Line

Summation represents your final opportunity to persuade the jury. By the time of summation, jury analysis proves that virtually all of the jurors have already formed opinions as to who should win and who should lose. The role of summation, therefore, is to sway those few jurors who still remain undecided, and to arm jurors already on your side with the ammunition to convince adverse jurors to change their opinion.

The Court permits attorneys wide latitude to “fairly comment” on the facts and evidence as borne out by the proof. Fair comment encompasses argument on every pertinent matter of fact before the jury. Indeed, the permissible boundaries of summation are best defined by what cannot be said.  

Thus, counsel may not:

•  Comment On Facts Which Have Not Been Placed In Evidence.

See Cattano v. Metropolitan St. Ry. Co., 173 N.Y. 565 (1903) (appeals to prejudice or passion or raising facts neither proved nor presumed have no place in the trial.)

Taggart v. Alexander’s Inc. 90 A.D.2d 542, 455 N.Y.S.2d 117(2d Dep’t 1982) (reversible error to permit defense counsel to refer to prior acts of the decedent in summation where there was no evidence introduced of such acts at trial).

•  Request Damages In Excess Of The Amount Demanded In The Pleadings.  

See Pop Cowboy, Inc. v. 175 West 73rd Street Reality Corp., 292 A.D.2d 300, 740 N.Y.S.2d 29 (1st Dep’t 2002), reducing a jury’s damage award where the award exceeded the amount specified in the ad damnum clause.

•  Make References To The Insurance Coverage Of A Party.  

See Young v. Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001) holding the lower Court properly sustained defendant’s objections to plaintiff counsel’s “veiled references to insurance” during summation)

Knapik v. Whitaker, 30 A.D.2d 915, 292 N.Y.S.2d 781 (3d Dep’t 1968)

Rendo v. Schermerhorn, 24 A.D.2d 773, 263 N.Y.S.2d 743 (3rd Dep’t 1965) holding defense counsel’s references to defendant’s lack of insurance cannot be condoned.

•  Allude to a Party’s Ability or Inability to Respond in Damages. 

See Vassura v. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120 (2d Dep’t 1986) holding it was grossly improper for defense counsel to remark in summation that the defendants have limited means and could not afford to pay a large judgment

Carey v. AAA Con Transportation, Inc., 61 A.D. 2d 113, 401 N.Y.S.2d 1015 (3rd Dep’t 1978), granting a new trial where plaintiff’s counsel in summation commented on the defendant’s ability to pay

Nicholas v. Island Industrial Park of Patchogue, 46 A.D.2d 804 (2d Dep’t 1974). In Nicholas, plaintiff’s counsel stated in summation: “They’re the corporations, they’re the owner, they’re the defendant, they’ve got the money, they’ve got the assets behind them.”   Nicholas supra at p. 41. The court held that references to a defendant’s ability to pay damages were improper.  

•  Act As An Unsworn Witness By Asserting Personal Knowledge the Facts in Issue. 

See Valenzuala v. City of New York, 59 A.D.3d 40, 869 N.Y.S.2d 49 (1st Dep’t 2008) plaintiff’s counsel caused reversible error by continually voicing his opinion as to the facts of the case during summation, which conduct amounted to a subtle form of testimony which could not be cross examined

Boruch v. Morawiec, 51 A.D.3d 429, 857 N.Y.S.2d 103 (1st Dep’t 2008) (it is improper for defense counsel to call the Industrial Code a “stupid law,” but holding that the comment had been properly limited by a curative instruction)

Pilon v. Pilon, 278 A.D.2d 760, 718 N.Y.S.2d 449 (3d Dep’t 2000)

Reynolds v. Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 (4th Dep’t 1996)

Stangl v. Compass Transportation, 221 A.D.2d 909, 635 N.Y.S.2d 376 (4th Dep’t 1995)

Sanchez v. Manhattan and Bronx Surface Transit Operating Auth., 170 A.D.2d 402, 566 N.Y.S.2d 287 (1st Dep’t 1991)

Undignified, Discourteous, and Plainly Obnoxious Ways to Blow a Case

In addition to the foregoing, there is a general, but important, category of improper summation commentary which can be best characterized as undignified, discourteous and plainly obnoxious conduct of such a significant degree as to compel a retrial. See the examples below.

Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep’t 1982)

Among the other excesses contained in the plaintiff’s summation, was the following:  “They will say anything to beat this case because, ladies and gentlemen, there is a lot of money involved here.  They bring in a phony doctor for a price. . .”  Id. at p. 318.

Berkowitz v. Marriott Corporation, 163 A.D.2d 52 (1st Dep’t 1990)

In this case, a verdict of nearly $8 million was reversed because of plaintiff counsel’s remarks during summation, including calling experts hired guns, accusing the defense attorney of not even himself believing the positions his clients advanced, etc. This case is significant in that defense counsel did not object to the comments as they were being spoken; rather, he waited until the conclusion of summation. Notwithstanding, the court ordered a new trial. 

Maraviglia v. Lokshina, 92 A.D.3d 924, 939 N.Y.S.2d 534 (2d Dep’t 2012)

The Second Department ordered a new trial based on a defense attorney’s comments during trial that the plaintiff’s treating physician was the “go-to” doctor for people seeking disability benefits and that the doctor performed medicine “in a parking lot.” He also implied that another one of plaintiff’s doctors was involved in a scam and he made various other inflammatory comments not based on the evidence. 

Mercurio v. Dunlop, 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dep’t 1980)

In Mercurio, the defense verdict was reversed because defendant argued plaintiff’s expert was a fraud and a phony, and plaintiff wanted to steal money from the defendant. Yet, in Chappotin v. City of New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dep’t 2011) lv. To app. Den. 19 N.Y.3d 808 (2012), the First Department affirmed a jury verdict despite defense attorney comments that the lawsuit was part of a pattern of the plaintiff trying to “scam his way into free money”, and that the plaintiff, who was on disability before the accident, “has played the system going on 15 years.” The Appellate Division affirmed the defense verdict on the grounds that plaintiff’s attorney had failed to object to 13 of the 15 objectionable comments and the trial Court gave curative instructions on the two comments plaintiff objected to.

The lesson in these cases is clear. Parties in summation may recap the evidence, comment on its relevance to the issues in the case and contrast the testimony. Counsel is given, “within the four corners of the evidence, the widest latitude by way of comment, denunciation or appeal in advocating his cause.”  Braun v. Ahmed, 127 A.D.2d 418, 421, 515 N.Y.S.2d 473 (2d Dep’t 1987); Kasman v. Flushing Hospital and Medical Center, 224 A.D.2d 590, 638 N.Y.S.2d 687 (1996). Ad hominem attacks, however, are not favored, although sometimes permitted, but may result in a reversal if they have no evidentiary basis.

In short, the law of summations is rather simple. Deliver your summation based on the evidence.