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Birmingham Bar Association Bulletin

Closing Arguments improper argument.10 However, a "'bare invitation' for the jurors to put themselves in the place of a litigant, without an appeal to the juror's passions and feelings, is not considered to be improper."11 Finally, argument which would otherwise be improper is not reversible error if it is a reply in kind to the opponent's argument or "provoked by arguments of opposing counsel," often stated in court as "he (she) opened the door."12 The following are examples of improper arguments-- Argument that the jury will pay the verdict: In an electrical fire case the lawyer for Defendant Alabama Power Company argued: "In other words, the Plaintiff must prove that and if he has not, then you cannot return a verdict in his favor. And that's sometimes not an easy thing, and I know it's not an easy thing in this case. The easy thing would be to say, 'Okay, we feel sorry for these people and therefore we're going to return a verdict against the Power Company. They can afford to pay it.' And that's true, and the rates will be passed on because it's a public utility, and the rates will be passed on because it's a public utility, and the rates are based on the expenses, and it'll be passed on because it's a public utility, and it'll be passed on, but you are the law in this case, and so you have to answer the question today." Arguing either the wealth of the defendant or that the defendant is of modest means -- Wealth of defendant: "'counsel for plaintiff Mr. Lakeman an Otis Elevator serviceman is not going to have to pay this judgment. Otis is. The same company that can afford to hire Mr. McAuley, the man from New York -- counsel for defendant Excuse me. counsel for plaintiff -- to come in -- counsel for Defendant Excuse Me, Your Honor. This is improper argument here. counsel for plaintiff What am I going to say? I mean, I haven't even gotten the words out. counsel for defendant I'm making an objection to the Court. THE COURT: Overruled. Go ahead. Let's just hurry up. counsel for plaintiff Thank you, Judge. The same company that can afford to hire Mr. McAuley to come in and testify for Otis and against a hundred other people who have been hurt on Otis elevators in the last four years, that's the company that's going to have to pay this judgment. That's an average of two persons per month.'" Modest financial status: "'Now, we expect the evidence to show, ladies and gentlemen of the jury, that Continental Volkswagen, a small private domestic corporation owned by Mr. William B. Alford . . . .'" Arguing wealth of the plaintiff: "'It's a great thing folks, to be a very wealthy man and to be able to go out here Birmingham Bar Bulletin/ Summer 2018 13


Birmingham Bar Association Bulletin
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