Summation

• Author: Helen E. Freedman/Gerald Lebovits
• Pages: 483-514

19-1

CHAPTER 19

SUMMATION

I. PRINCIPLES

§19:10 Denition and Purpose

§19:20 Order of Closing Argument

§19:30 Scope

§19:40 Procedure for Objecting During Closing

§19:50 Recording Closing Argument

II. OBJECTIONS

§19:60 Matters Not in Evidence

§19:70 Demonstrative Materials Not in Evidence

§19:80 Commenting on Failure to Testify

§19:90 Injecting Self or Personal Belief; Vouching for Witness Credibility

§19:100 Reading or Arguing Law

§19:110 Personal Attacks

§19:115 Appeals to Sympathy

§19:120 Racial, Political, or Religious Comments

§19:130 Wealth, Poverty, Self-Interest

§19:140 Collateral Sources

§19:150 Settlement

§19:160 Specic Damage Award

§19:170 Unit of Time as Measure of Damages (Per Diem Argument)

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19-3 SUMMATION §19:30

I. PRINCIPLES

§19:10 Def‌inition and Purpose

At the close of all the evidence on the issues tried, an attorney for each party may make a closing statement.

CPLR 4016. During closing statements, counsel places before the court the party’s major contentions, summarizes

and claries the evidence adduced at trial, and attempts to persuade the fact nder that the evidence supports that

party’s position. Summations may also provide an opportunity for counsel to guide the nder of fact in evaluating

and computing damages.

§19:20 Order of Closing Argument

In general, the parties make their closing arguments in reverse of the order used during opening statements.

CPLR 4016. e privilege of opening and closing a case is a substantial and important right given to the party

having the “armative of the issue,” or in other words, the party who has the burden of proving the case. Heilbronn

v. Herzog, 165 N.Y. 98, 58 N.E.759 (1900); De Vito v. Katsch, 157 A.D.2d 413, 556 N.Y.S.2d 649 (2d Dept. 1990).

is is usually determined by the trial court, with reference to the pleadings. Lake Ontario Nat. Bank v. Judson, 122

N.Y. 278, 25 N.E. 367 (1890); De Vito v. Katsch, 157 A.D.2d 413, 556 N.Y.S.2d 649 (2d Dept. 1990).

us, the plainti normally holds the right to open rst and close last. See Heilbronn v. Herzog, 165 N.Y.98,

58 N.E. 759 (1900); De Vito v. Katsch, 157 A.D.2d 413, 556 N.Y.S.2d 649 (2d Dept. 1990) (right to open rst).

However, a defendant who has the burden of proof may open rst and close last, but such right must be asserted.

See Koo v. Robert Koo Wine & Liquor, Inc., 203 A.D.2d 180, 611 N.Y.S.2d 4 (1st Dept. 1994) (defendants waived

any right to open rst by failing to object or to request to be permitted to do so pending court’s decision as to

which side had burden of proof, and by armatively agreeing with court that decision could be postponed until

close of evidence).

If several actions have been consolidated, the trial court generally has discretion to determine which party has

the right to open and close, given the circumstances of the case. Rockaway Boulevard Wrecking & Lumber Co. v.

Raylite Elec. Corp., 25 A.D.2d 842, 270 N.Y.S.2d 1 (1st Dept. 1966); Crescent Puritan Laundry Co. Inc. v. McNamara,

254 A.D. 646, 3 N.Y.S.2d 492 (4th Dept. 1938). In exercising that discretion, the court may either:

• Allow the party exercising the greater diligence in prosecuting its action to open and close. Rockaway

Boulevard Wrecking & Lumber Co. v. Raylite Elec. Corp., 25 A.D.2d 842, 270 N.Y.S.2d 1 (1st Dept. 1966).

• Give that right to the party rst to commence its action. Grimm & Davis v. Goldberg, 101 Misc.2d 829,

422 N.Y.S.2d 319 (Civ. Ct., Kings County, 1979).

§19:30 Scope

Trial courts are required to interpret the permissible scope of closing arguments broadly. us, in addressing a

jury during closing, counsel may comment on every pertinent matter of fact bearing on the questions to be decided

by the jury. Braun v. Ahmed, 127 A.D.2d 418, 515 N.Y.S.2d 473 (2d Dept. 1987). e court commits prejudicial

error if it restricts counsel from commenting within the four corners of the evidence during summation. Kasman v.

Flushing Hosp. and Medical Center, 224 A.D.2d 590, 638 N.Y.S.2d 687 (2d Dept. 1996); Braun v. Ahmed, 127 A.D.2d

418, 515 N.Y.S.2d 473 (2d Dept. 1987); Novikov v. Zamdborg, 79 A.D.3d 833, 913 N.Y.S.2d 295 (2d Dept. 2010).

Counsel also has a right during summation to place before the jury the contentions of the parties as stated in

the pleadings. e statements, admissions, and allegations in the pleadings are always in evidence for all purposes

at trial. ey are made for the purpose of trial, are before the court and jury, and may be used for any legitimate

purpose. Holmes v. Jones, 121 N.Y.461, 24 N.E. 701 (1890); Braun v. Ahmed, 127 A.D.2d 418, 515 N.Y.S.2d 473

(2d Dept. 1987).

If the court permits, counsel may interrupt the adversary’s summation to read the remainder of the testimony

where the reading of part of a question or answer is misleading. Grin v. City of New York, 67 A.D.3d 550, 889

N.Y.S.2d 170 (1st Dept. 2009).

Although broad in scope, counsel’s liberty of discussion during closing argument is not without limits. Counsels’

comments on the evidence during summation must remain within the issues and evidence at trial. Braun v. Ahmed,

127 A.D.2d 418, 515 N.Y.S.2d 473 (2d Dept. 1987). Similarly, an attorney’s right to use the pleadings before the

jury is subject to the opposing party’s right to have the jury instructed that the complaint is not evidence and that