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Birmingham Bar Association Bulletin

Closing Arguments Lloyd W. Gathings, Gathings Law and hire two law firms with four lawyers'" Inflammatory argument of facts not in evidence: Argument that Plaintiff's lawyer made a deal with a released defendant doctor to obtain favorable testimony from that defendant: "'The deal was made, the deal was done. And the deal was consummated March 7, 2005. You come here, and you just follow that testimony so we can hang this nurse out to dry. And then you'll be dismissed from this case. Do you know why? Let me tell you why. Because it's easier for you folks to bring a verdict back -- $7.5 million -- against a hospital, a corporation, than it is a doctor. That is why it was done. That, to me, is insulting to you. It's insulting to you, that you would be swayed by that. But that was the deal that was cut in this case. It may be the seedy side of what goes on, but that's what happened.'" Argument of defendant driver's record in a trucking accident case: "'You didn't hear his driving record; we couldn't get that in over his objection."' Argument to jury not to worry about an excessive verdict because the trial court would reduce it: "'One last thing, I don't want you to worry about your verdict for punitive damages being too big. If you decide that in order to get the attention of the Osborne corporation you've got to return a verdict of punitive damages of one million dollars or whatever, of course, Tommy has only asked for two hundred and fifty thousand, whatever your verdict is, if some of you should say that's too much, it's unfair, the judge has the authority and I assure you will reduce it if it's too much and if she doesn't the Supreme Court of Alabama will reduce it.'" Argument of the lawyer's personal opinion: "'On the other hand, and the Defense attorneys are probably going to tell you this, anyway; but the State vouches for what its witnesses say when they put them on the stand. And I do vouch for what my witnesses have said to you. I believe they have been completely honest with what they have told you yesterday and today. They have told you the truth in this case . . . . They didn't lie about anything. They did what they told you they did. And they talked to me, some of them did, one of them talked to me one time before we came to Court and I told everyone of them, 'You better tell the truth when you get on that witness stand' because I cannot bring you what I believe to be falsehoods from the witness stand. And I do believe they told you the complete truth.'" Argument based on the lawyer's personal experience: "'He gave that statement out of court voluntarily and freely. I think we have shown that. I don't think they have disproven that. He gets up here now when he is in trial for this crime and testifies he didn't know what he was doing. That is not anything unusual. I see it all the time. People love to play dumb when the heat is on them.'" CONCLUSION Most of the time it is immediately obvious when the opposing lawyer makes an improper closing argument. However, the less obvious and tougher question is what your response should be to that argument. Do you object and have the Court give a curative instruction, or do you choose to answer to the improper argument in kind? Trial experience, a clear head and true gut can only answer that question. That being said, take your sword out of the scabbard, forget the parlor social rules and let the combat begin! Lloyd Gathings is a senior partner with Gathings Law in B i r m i n g - ham. He has over 40 years of civil litigation experience. G Lloyd W. Gathings, Gathings Law 14 Birmingham Bar Association


Birmingham Bar Association Bulletin
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