Outrageous Opponents: How to Stop Them in Closing Argument

JurisdictionGeorgia,United States
CitationVol. 6 No. 4 Pg. 0001
Publication year2001
Georgia Bar Journal
Volume 6.

GSB Vol. 6, No. 4, Pg. 1. Outrageous Opponents: How To Stop Them In Closing Argument

Georgia State Bar Journal
Vol. 6, No. 4, February 2001

"Outrageous Opponents: How To Stop Them In Closing Argument"

By Ronald L. Carlson and Michael S. Carlson

Most attorneys try to sum up their cases in a fashion that comports with accepted law and local practice. All too frequently, however, one has the misfortune of running into Rambo, the over-the-top opponent. Before his peroration is concluded, Rambo has trampled on the law of trial practice by making half a dozen improper arguments. He urges evidence that never came up at trial. He injects hearsay into the proceedings. He adds his own opinions about which witnesses were lying and the legal fault of your client. And, this is just the beginning. Adding insult to injury, the unjust tactics often inure to Rambo's benefit. He wins the case Applying antidotes to this sort of poison requires a checklist of argument "do's" and "don'ts." Unless counsel has the rules and perhaps some citations readily at hand, it is impossible to forge an effective objection strategy. Yet, only such a strategy has the potential to break an opponent's stream of improprieties. In addition to interrupting the outrageous opponent in a legally appropriate way, there is another advantage: The well-placed contemporaneous objection usually provides the single avenue for a successful appeal. This article supplies the tools for the foregoing job. Common objections have been isolated for treatment and analysis. It is hoped that their inclusion will provide the needed ammunition the next time an overly dramatic opponent resorts to an improper tactic

Objection Responsibilities

Before an attorney can complain about an improper argument countless Georgia cases underline the need for the lawyer to make an objection and obtain a ruling from the trial court.1 A similar rule applies in Georgia's federal courts. Many arguments are subject to being stricken upon challenge by opposing counsel. A highly practical question centers on the role and the obligation of the complaining attorney. Is a timely objection necessary to ensure protection? Will the judge police the proceedings on her own by interrupting or stopping the offending counsel? A 1993 case answers these questions. In Neal v. Toyota Motor Corp.,2 counsel for the injured plaintiffs in a products liability action used his closing argument to render what the court viewed as a "send the message" argument. The court found the argument to be improper in the context of the case, citing what it described as counsel's effort "to incite the jury into a xenophobic rage."3 However, defense counsel lodged no objection to that part of the summation at trial Defendant's lawyers explained that they did not want to object and risk raising the ire of the jury. The court held that this inaction was fatal, preventing the trial court from granting the defense motion for a new trial. While a few arguments will indelibly taint a verdict even in the absence of an objection, they are rare. A timely objection to the closing argument is necessary, and this rule applies even when the argument is inflammatory and prejudicial. The United States District Court for the Northern District of Georgia provided a helpful formula when it suggested that the prudent course of action for the complaining counsel "would have been for Defendant to object at the first mention of improper argument and again raise the objection after [plaintiff's counsel] finished his closing if he continued utilizing his improper remarks, as he did here."4 The case of Haygood v. Auto-Owners Insurance Co.5 further underlines the need for an objection. The defense complained that the plaintiff's summation improperly suggested misconduct by the insurer, and urged reversible error. The United States Court of Appeals for the Eleventh Circuit ruled that it was misleading for the plaintiff's attorney to suggest that Auto-Owners was hiding something. However, "at no time during or after the closing arguments did Auto-Owners object on this ground, nor did it ask for a limiting instruction, so the objection to the closing argument is waived."6 The bottom line is clear: When an opponent errs in his manner of argument and it injures your case, object. Object vigorously.7 Spotting the objectionable argument is what the rest of this article is about.

Personal Beliefs of Counsel

What if counsel discredits opposing witnesses by telling the jury his belief that they lied when they testified? It might come out something like this: "Ladies and gentlemen, don't follow the path laid out by plaintiff's expert on damages. I have investigated this case, and I know things about him. He is a prostitute for hire. I believe that this 'expert' was lying when he swore there were permanent injuries here." Such an argument merits objection on more than a single ground, but certainly one of them should be: "Objection, improper opinion by counsel." While a few "I believe" statements mark the arguments of most attorneys, they become inappropriate when they refer to the guilt or fault of an opposing party or the credibility of witnesses, as illustrated in the foregoing paragraph. A prosecutor can neither announce to the jury that she believes in the truthfulness of a specific prosecution witness in the case and not the defendant8 nor proclaim her belief that the accused is guilty.9 However, in order to make out a violation of the personal opinion rule, objecting counsel needs to establish that there was a clear expression of personal belief by one's opponent on a prohibited topic.10 This generally requires a showing that one's adversary referenced the guilt or fault of the objecting party, or slandered the credibility of a witness by offering counsel's personal expression of disbelief.


This impropriety is a variant of the "no personal opinion" rule. An objection can be made when counsel improperly bolsters her own witness by personally vouching for the witness' truthfulness. The Supreme Court of Georgia has made it clear that a prosecutor may not vouch for the character of a witness.11 Promising or assuring the jury that counsel knows that a witness testified truthfully does this, and abridges the rule. However, it is again the case that some fine line-drawing occurs. To be improper, the endorsement of a witness' truthfulness must be clearly evident. More modest statements of witness support simply fall into the category of appropriately arguing inferences from the evidence.12

Argument Outside the Record

In closing argument, counsel is allowed to draw reasonable inferences from the testimony. In doing so, the attorney may enrich the argument with references and...

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