Chapter 10 - 10.5 Bases For Objection

• Jurisdiction: Virginia

10.5 BASES FOR OBJECTION

Objection may properly be made during closing to any of the following:

• Attack on opposing counsel, party, or witness.⁵

• Improper reference to collateral source.⁶

Argument: Defense counsel in an injury case states that the defendant should not be made to pay the amount that plaintiff's counsel is asking for.

Objection: Ask to approach the bench as defense counsel is stating that the defendant will be the one paying any judgment when the fact is that the insurer will pay. This may be a basis for a mistrial.

• Inappropriate reference to the financial status of the parties. The only time this would be appropriate is in a case involving punitive damages.⁷

• Golden Rule argument. It is inappropriate to ask the jury to place themselves in the position of the plaintiff.⁸

• Per diem argument. It is improper to argue to the jury to award damages based on a daily, weekly, or yearly rate.⁹ However, plaintiff's counsel may argue in closing that each element of damage is separate and suggest to the jury a numerical value for each category of damages.¹⁰

• Ad damnum clause. Section 8.01-379.1 of the Virginia Code allows a party to inform the jury of the amount of damages sought in opening or closing statements. But the party is limited to the amount of damages requested in the ad damnum clause in the pleadings, which controls the legally permissible range of an award.¹¹

• The argument is the personal belief of
counsel.¹² Whenever counsel begins talking about personal experiences or other trials, that may likewise be a basis for objection.

• The argument appeals to the self-interest of the jury. As is true with the Golden Rule argument, it is inappropriate to ask the jury to assume that this is their case as opposed to being objective, neutral arbiters of the dispute.¹³

• Reference to similar cases is inappropriate.¹⁴

• Counsel

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