Trial Tips III - How Far Can You Go In Your Summation? By Frank Scahill

Trial Counsel are afforded wide latitude in presenting arguments to a jury in summation. (see Califano v. City of New York, 212 A.D.2d 146, 154, 627 N.Y.S.2d 1008 [1st Dept.1995] ). During summation, an attorney "remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proofs without depriving the plaintiff of a fair trial." (Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 163, 952 N.Y.S.2d 26 [1st Dept.2012] [citation omitted] ). However, an attorney may not bolster his case ... by repeated accusations that the witnesses for the other side are liars." Gregware v. City of New York, 132 A.D.3d 51, 61, 15 N.Y.S.3d 21, 29 (N.Y. App. Div. 2015)

What are the rules?

1. You cannot make statements that are designed to inflame the jury's passion, which would result in the jury deciding the case on an emotional rather than rational basis.

2. You cannot make character attacks on the plaintiff or the plaintiff's witnesses.

3. You cannot make an ad hominem attack that can be characterized as extreme and pervasive.

Consider the two cases below:

In the first case, a construction worker brought an action against the City and others, seeking to recover damages for injuries he sustained when he fell off a scaffold at a construction site. Here, a new trial was warranted based on comments by counsel. Rodriguez v. City of New York, 67 A.D.3d 884, 889 N.Y.S.2d 220 (2009). Specifically, in his opening statement, defense counsel stated that Rodriguez, who alleged that he was unable to work as a result of back injuries he sustained from the fall, was disabled due to "lung problems", sepsis, and his treatment with interferon for hepatitis C. In his summation, defense counsel referred to the testimony of Rodriguez's vocational economic analyst as "totally incredible" and a "kind of tweaker." Additionally, during the course of summarizing the testimony of an economic analyst retained by the plaintiffs, defense counsel exclaimed, "[w]hat a liar," when describing the analyst and the analyst's statement that he did not have a calculator with him at trial. In addition, defense counsel rhetorically asked "[w]hy do they lie to you?" when telling the jury that the case was about fair and adequate compensation for the injuries Rodriguez sustained in the accident. Defense counsel went on to state: "It's not a lottery. It's not a game. It's not here's the American dream, come over here, fall off a scaffold, get a million dollars." Finally, defense counsel also told the jury that, from the beginning of his testimony, Rodriguez's treating chiropractor was "not being honest, is not being truthful."

In the second action, Selzer v. New York City Transit Auth., 100 A.D.3d 157, 160-61, 952 N.Y.S.2d 26, 28-29 (2012), a passenger brought an action against the transit authority, seeking to recover for injuries sustained upon exiting a subway car. Here, the appeal was denied with a finding the trial attorney stayed within the lines in his summation. The record reflects that at trial, the defense counsel advanced the theory that the plaintiff's account of his accident was implausible. In his opening remarks, the defense counsel told the jury, without objection, that the evidence would establish that "the only way [the accident] could have happened was because of some fault on the part of the plaintiff." Defense counsel told the jury "just use your common sense to try to understand the mechanics of something like this happening."

In summation, the defense counsel posited that the plaintiff "jetted out" of the train at the last second. Defense counsel stated, "I am not a witness. What I say is not testimony. I'm only giving it to you to ponder." He continued, "After all, if you imagine a person standing in a doorway just standing there when the doors closed - and all of you [have] seen this happen[ ] and I know this, during jury selection, you've all seen doors close on people and passengers, okay. You know what happens. It's the upper part of the person's body that's contacted." At this point, the plaintiff objected, and the court sustained the objection. Then the defense counsel continued, "[B]ecause, as I said in my opening, the plaintiff's body was outside of the train at the time of the occurrence. Why was it that way? I have no idea but it wasn't because his leg just happened to be at a particular point that it could be grabbed and held ... Think about it, how it happened. If he were going through, the upper part of his body would have been hit and would have been the contact point, his arm, shoulder or something like that." The plaintiff objected again, and the court sustained the objection. The defense counsel then completed his sentence: "But not his leg." At this point, the court repeated that it had sustained the objection. Defense counsel stated, "There is no other way I see it. You can - you're the triers of the facts. You may decide otherwise."