Objections During Closing Argument

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Abraham Lincoln Inns of Court - March 22, 2011

Based on anecdotal evidence only, it seems as though objections during closing arguments are the exception rather than the norm.1 Many objectionable statements are allowed to pass without comment by opposing counsel either because the statement has an inconsequential impact or counsel does not want to offend the jury with multiple objections.

The purpose of this article to provide a non-exhaustive list of potential objections that may be made during closing arguments. It is up to counsel to decide when, or if, such objections should be used.

Objectionable statements include the following:

  1. Violation of an In Limine Order: Counsel may not discuss items precluded by an order in limine.2
  2. Reference to Facts Not in Evidence: Stating, or even alluding to, facts not presented into evidence is improper.3
  3. Vouching: It is improper for counsel to personally vouch for the veracity of a witness. Other forms of vouching may include statements as to what the attorney believes as opposed to what the evidence shows.4
  4. Misstatements of Law or Evidence: Counsel may not misstate the law or misstate evidence submitted during trial.5
  5. Attacks on Court Rulings: An attorney may not attack or impugn rulings by the Court in front of the jury.6
  6. Juror Involvement: An attorney may not refer to a juror by name or involve jurors in the demonstration of evidence.7
  7. Asking for Social Justice in Cases Without Punitive Damages: Counsel shall not ask or a jury to “punish” or “send a message to” a defendant in cases that do not include a claim for punitive damages.8
  8. Expressions of Contempt for Opposing Counsel: Counsel shall not impugn the reputation or character of opposing counsel.9
  9. Asking Jurors to Put Themselves in Position of Plaintiff or Defendant: Asking the jurors to “put themselves into the shoes of the plaintiff” or “imagine yourselves as the plaintiff (or defendant)” violates the so-called “Golden Rule” and is improper.10
  10. Statement that Inflame or Prejudice: References to race, religion or national origin may be objectionable. In situations where the plaintiff is a governmental body, statements that a judgment for the plaintiff may result in higher taxes for the jurors may be improper. Extreme emotional pleas may be objectionable.11
  11. References to Insurance: Comments about the existence, or non-existence, of insurance may influence a jury as to liability or the amount of an award and are therefore usually improper.12
  12. Suggestion of Mathematical Formula for Damages: It is improper to suggest a mathematical formula, such as a per diem award, for personal injury. The formula creates an illusion of mathematical certainty and inhibits practical consideration.13
  13. Comparison of Wealth: Comparison of the wealth of the litigants is improper.14

As a caution, any objection to statements made during closing arguments must be timely. As a general rule, failure to promptly make the objection will waive the objection for appeal. There may be an exception to this rule if the comments were so inflammatory that a party was denied a fair trial.15

Severe consequences may result from making objectionable statements during closing arguments. Consequences may include corrective instructions, mistrial, a verdict overturned on appeal and disciplinary action. Counsel is therefore advised to ignore the outrageous antics commonly shown in popular television programs and avoid objectionable statements. As noted in Bishop v. Chicago Junction Railway, “When intelligent counsel persists in conduct which he knows may result in setting aside the verdict of the jury if he secure one, he is thereby deliberately taking chances with his client’s rights.”16

1Objections during closing arguments were the norm in the United States of America v. Rod Blagojevich, 08CR888.  Defense counsel filed a Motion for Mistrial noting that “[T]hroughout the closing argument of Attorney Sam Adam, Jr., the government objected approximately three dozen times…”

2Kuthins v. Berg, 264 Ill.App.3d 926 (1st Dist. 1994)

3Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37 (1st Dist. 1961)

4Koonce v. Pacilo 307 Ill.App.3d 499 (1st Dist. 1999)

5Stennis v. Rekkas, 233 Ill.App.3d 813 (1st Dist. 1992)

6Ryan v. Monson, 33 Ill.App.2d 406 (1st Dist. 1961)

7Schaffner v. Chicago & North Western Transportation Company, 129 Ill. 2d 1 (1989)

8Erie Ins. Co. v. Bushy, 394 So. 2d 228 (FLA. 5th DCA 1981)

9Although a criminal case, the maxim of “don’t criticize opposing counsel” is illustrated in The People of the State of Illinois v. Bimbo, 314 Ill. 449 (1924).  Defense counsel was correct when he stated “I take exception to that remark.  By your dirty, scurrilous remarks I will get a new trial, if there is a verdict.”
Wilbourn v. Cavalenes, 398 Ill.App.3d 837 (1st Dist. 2010)

10Chakos v. The Illinois State Toll Highway Authority, 169 Ill.App.3d 1018 (1st Dist. 1988).  Contrast this with permissible references to the “reasonable man.”  Bruske v. Arnold, 44 Ill. 2d 132 (1969)

11In Chesapeake and Ohio Railway Company v. Shirley’s Administratix, 218 Ky. 337 (1926), the court admonished counsel, but did not overturn the verdict, when Plaintiff’s counsel stated “You killed their Santa Claus; in the name of God I ask you to fill their stockings on Christmas eve night, and I ask it for Jesus’ sake.” 
Chicago North Shore and Milwaukee Railroad Company v. The Chicago Title and Trust Company, 328 Ill. 610 (1928)

12Lenz v. Julian, 276 Ill.App.3d 66 (2nd Dist. 1995)

13Caley v. Manicke, 24 Ill. 2d 390 (1962)

Ramirez v. City of Chicago, 318 Ill.App.3d 18 (1st Dist. 2000)

14Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37 (1st Dist. 1961)

15Belfield v. Coop, 8 Ill.2d 293 (1956)

16Bishop v. Chicago Junction Railway Company, 289 Ill. 63 (1919)

Note: As a quick primer, special mention is made of Koonce v. Pacilo 307 Ill.App.3d 499. In the closing argument the court found the defense attorney to have violated prohibitions against vouching, reference to facts not in evidence, misstatements of fact, prejudicial statements, asking jurors to put themselves in the shoes of the plaintiff and references to insurance.