18.08. Litigation Tactics [Rule 3.4(e)]

It is unethical for a lawyer to engage in improper tactics in litigation.  Rule 3.4(e) sets out several prohibitions on litigation conduct.  A lawyer shall not:  (1) during a trial allude to any matter that the lawyer does not reasonably believe is relevant or that a matter that will not be supported by admissible evidence; (2) assert personal knowledge of facts in issue (except when testifying as a witness); or (3) state personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.[1]

In closing arguments of a negligence action, counsel for defendant made the following statement:

Ladies and gentlemen, they want a lot of money for this.  A lot of money.  What’s been written on the board is called a per diem analysis . . . .  How many days has it been since the accident?  How many days for the rest of his life.  And how much per day is that worth?  That’s what been done here.  That’s how we get verdicts like in the McDonald’s case with a cup of coffee.

Plaintiff’s counsel objected to the statement.  The jury verdict was $62,500 for Plaintiff – much less than was requested.  Was defense counsel’s statement improper? [Boyle v. Christensen, 251 P.3d 810 (Utah 2011)]

Yes.  The lawyer’s statements made reference to facts not in the record (the reference to the McDonald’s case) with the intent to “inflame passion or prejudice in the jury” and  “divert the jury from its duty to base its verdict on the evidence presented.”  The court found that this statement in closing had a reasonable likelihood of prejudicing the outcome of the case and remanded it for a new trial.  Think of the costs – in time and money – that this lawyer forced his client to incur by making this one improper statement in closing.

[1] ABA Rule 3.4(e).