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19 Hamline L. Rev. 179 (1995-1996)
Summation at the Border: Serious Misconduct in Final Argument in Civil Trials

handle is hein.journals/hamlrv19 and id is 189 raw text is: MISCONDUCT IN FINAL ARGUMENT IN CIVIL TRIALS SUMMATION AT THE BORDER: SERIOUS MISCONDUCT IN FINAL ARGUMENT IN CIVIL TRIALS Peder B. Hong' I. INTRODUCTION In the legal imagination, an official weigh station lies just beyond final argument, just beyond the intersection of Reason Road and Persuasion Place: the intersection of Hope Avenue and Zeal Street. In the world of real litigation a higher volume of traffic has driven through these intersections to face the verdict of the official weigh master - the jury. The methodology of this article is inductive and empirical. The article generates a working list of categories of serious misconduct' in final argu- ment in civil trials. Within each category, the article provides a significant number of examples from Minnesota case law for breadth and contrast. The article operates as a helpful tool, not only for civil litigators, but also for trial judges who must referee the process through which legal contests are brought to just and fair resolutions. II. SERIOUS MISCONDUCT IN THE CIVIL TRIAL It is best to begin this article with an example of the type of behavior dur- ing final summation that the author characterizes as misconduct: When plaintiff's wife was on the witness stand, she was asked about a trip she had made to the Pacific coast, accompanied by a young woman. She was asked where her companion obtained the money for the trip and answered that it was furnished by a friend of the young woman's mother. Asked who the friend was, she gave the name of one of plaintiffs counsel. The gentleman whose name was given turned to defendant's counsel and said: Tom, shake hands! I have got to hand it to you. This is one of the best things I have ever seen put over in a court ofjustice. This led to a retort, and finally plain- tiff's counsel said: This statement of counsel is an absolute false- hood and a lie. At this point the record abounds in objections, exceptions and requests for action by the court. The court said: This must stop. Now, gentlemen, this has gone far enough. . . . We will drop it and go on. Then referring to what had been said by plain- I. District Court Judge, First Judicial District of Minnesota; BA., St. Olaf College; LL.B., Yale Law School. 2. Two caveats must be made at the outset. First, not all misconduct within a category of serious misconduct results in major sanctions for procedural, qualitative, quantitative, strategic or contextual reasons. Comparative cases not resulting in major sanctions (for a wide variety of reasons) are cited in the appendix Second, there are many categories of objectionable misconduct in final argument which fall outside the scope of this article because they have not resulted in, to date, major sanctions as defined in this article. Such misconduct is nonetheless objectionable at trial and subject to corrective instruction by the trial court. 1791

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