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One approach is to suggest your own number. As defense counsel, you must guardagainst suggesting a number which is so low as to be dismissed out of hand by the jury.Where the figure proffered is not credible, neither are you. This may cause the numbersuggested in the summation of the plaintiff’s attorney, if not itself unreasonable, to be givenadded deference. Another approach is to give a range which the jury may consider if they getto that issue. In the full trial where a defense verdict on liability is the goal or in theautomobile case where a defense is that no “serious injury” was sustained, discussions ofvalue should be delivered in a context which reminds the jury that you do not expect them tomake any award to the plaintiff but that you are nevertheless constrained to address theseissues because the ultimate decision as to whether or not to do so is theirs alone. In suchsituations, you may tell them all the reasons why they should never reach the damagesquestions on the Verdict Sheet or why an award of zero is warranted if they do. If you aredisinclined to leave it at that, you may tell them that if they disagree with you, you wouldurge them to consider only a modest award.It is also useful to inform the jury that it is likely that plaintiff’s counsel will requestthat they award a specific amount. Reinforce the idea that the amount which they award, ifany, is entirely and exclusively in their province. Tell them that plaintiff’s counsel is likelyto suggest a very high number in order to shock them into thinking in large terms. Tell themthat the intention of such a tactic is to get them to award some fraction of the amount actuallysuggested, that it is a strategy aimed at jacking up verdicts and nothing more.This approach may also have the added benefit of causing the plaintiff’s attorney to8328

re-think his own evaluation of the case. When he asks for a specific amount, it is likely thatthe jury will be thinking of what you just told them. Plaintiff’s counsel may now be on thedefensive.As plaintiff’s counsel, you should carefully consider the ramifications of the figurewhich you suggest to the jury. Discuss the tangibles first: the specific proven amountsattributable to hospital bills, physicians’ bills, lost earnings past and future, and then move onto the less tangible items of damages, pain and suffering, disability, loss of enjoyment of life.The figure should not be so high as to be dismissed outright by the jury as unreasonable.Once again, credibility must always be maintained.The subject of valuating cases in summations has been addressed in numerousappellate decisions. Some basics are clear. While the right of counsel to suggest anappropriate award to the jury is clear (CPLR § 4016 (b) and Tate v. Colabello, 58 N.Y.2d 84,459 N.Y.S.2d 422, 445 N.E.2d 1101 [1983]), it was held to be extremely prejudicial fordefense counsel to suggest that the measure of damages was a “life savings” for the “averageworking fellow” or that the award should be determined by whatever was “in the otherfellow’s pocket.” (Vassura v. Taylor, 117 A.D.2d 798, [2d Dept. 1986], 499 N.Y.S.2d 120Mot. to dismiss Appeal granted 68 N.Y.2d 642, 505 N.Y.S.2d 74, 496 N.E.2d 233 [1986]).References to the financial status of parties are forbidden. (Giuamara v. O’Donnell, 96A.D.2d 1049 [2d Dept. 1983], 466 N.Y.S.2d 692; Kenneth v. Gardner, 36 A.D.2d 575 [4thDept. 1971], 317 N.Y.S.2d 798; Rendo v. Schermerhorn, 24 A.D.2d 773 [3rd Dept. 1965],263 N.Y.S.2d 743).9329

References to insurance are also strictly forbidden. ( Johnson v. Lazarowitz, 2004N.Y. Slip Op. 00499 [2d Dept. 2004], 771 N.Y.S.2d 534; Butigian v. Port Authority of N.Y.& N.J., 293 A.D.2d 251 [1st Dept. 2002], 740 N.Y.S.2d 305.)Staying Within the Bounds of “Wide Latitude”There is a sense among beginning trial attorneys that it is bad form to voice objectionsduring your adversary’s summation. While it is certainly unacceptable to make frivolousobjections then or at any time, good practice requires that proper bounds not be exceeded insummation despite the wide latitude which is afforded counsel during this stage of the trial.When your adversary argues as fact something which is not supported by anything inthe record, objection should be strong and immediate. To the extent that the presiding judgeallows counsel to voice the bases of objections in the presence of the jury, you should do sofirmly and succinctly without losing sight of your role as persuader. “Your Honor, there isno such proof in the record.” or “Judge, I object. The witness said nothing of the kind.”Handle this in your own way. Some attorneys effectively introduce an objection of this typewith an apology, “Judge, I hate to interrupt but there is just no basis for that comment.” Hereagain, your own style, the rules of the particular court where you are and the circumstances ofthe individual case will control.The corollary to this rule is avoid making an inflammatory or prejudicial summation.You will risk frequent interruptions by your adversary which will disturb the flow of yourargument and may cause the forfeiture on appeal of a favorable verdict. Know where the line10330

falls between maximum persuasion and outright prejudice. In the close situation, err on theside of restraint.There is some fairly uniform agreement as to those types of comments which areunacceptable as a general rule. For instance, a new trial was ordered (despite the fact that asizable amount awarded to the infant plaintiff for a severe eye injury was adjudged to havebeen supported by the evidence) due to the “grossly improper and inflammatory summation”by plaintiff’s counsel. “The summation had as its continuing theme a personal attack ondefendant-appellant’s attorney, unsubstantiated charges of perjury and subornation ofperjury; racial overtones; and assertions of personal knowledge and personal opinion as to thecase and the credibility of witnesses.” (Caraballo v. New York City Housing Authority, 86A.D.2d 580 [1st Dept. 1982], 446 N.Y.S.2d 318.)Counsel must avoid casting himself in the role of witness. In the damage phase of acase involving an alleged brain injury to a then-sixteen year old plaintiff who sustained a sixinch fracture of the skull requiring emergency craniotomy, defense counsel stated in hissummation that he saw the plaintiff and his wife doing a crossword puzzle together.Objection was made and counsel was reminded that the crossword was not in evidence. Hereplied: “I should have grabbed the newspaper and put it in evidence.” The Court, citingviolations of DR 7-106 [C] [3], reversed the judgment on this and other grounds and ordereda new trial. (Weinberger v. City of New York, 97 A.D.2d 819 [2d Dept.1983], 486 N.Y.S.2d697.)A judgment entered upon a multi-million dollar verdict was reversed on the basis of11331

“an unfair and highly prejudicial attack upon the credibility and competence of defendants’expert witnesses and attorneys.” The two defense experts were repeatedly referred to as“hired guns” who were brought into the litigation to “fluff up the case” and “fill up sometime,” and, moreover, their testimony was attacked by plaintiff’s counsel on the ground that“there was no reason to obtain physicians from Suffolk County except that they could notlocate a physician who would support their case from here to Suffolk County * * *After that,boy, it’s Europe.” (Berkowitz v. Marriott Corp., 163 A.D.2d 52 [1st Dept. 1990], 558 N.Y.S.2d 511.)In a truly egregious case arising from the dissolution of a law partnership, it had beenfound that a party was denied the right to a fundamentally fair hearing due to the “sarcastic,rude, vulgar, pompous and intemperate utterances” attributable to the plaintiff’s attorney.(Dwyer v. Nicholson, 193 A.D.2d 70 [2d Dept. 1993], 602 N.Y.S.2d 144.) These involvedname calling and repeated unsupported accusations of perjury and theft against defendantsand their counsel. “[T]he acts committed by [the plaintiff’s attorney] were grosslydisrespectful to the court and a violation of accepted and proper courtroom decorum. Suchconduct is intolerable, for it destroys confidence in the fairness of judicial rulings andjudgments and perverts the trial procedure as a serious search for the truth (Matter ofCastellano, 46 A.D.2d 792).”Courts are frequently more forgiving if a prejudicial remark is isolated or seeminglyinadvertent. (Re: Amber L., 260 A.D.2d 673 [3rd Dept. 1999], 687 N.Y.S.2d 488.) Also,where a summation is found to be fair comment in response to an aggressive or accusatory12332

cross-examination, its propriety will be sustained. (Torres v. City of New York, 306 A.D.2d191 [1st Dept. 2003], 762 N.Y.S.2d 67 [overruled on other grounds].) However, where theobjectionable conduct is sustained, there is generally no tolerance. In a matter arising fromthe wrongful death of a longshoreman, plaintiff’s counsel’s summation was so filled withprejudicial comments that the Court reversed the multi-million dollar verdict and ordered anew trial on the issue of damages. For the most part, the objectionable comments weredirected to defense counsel: “I want you to put aside that nice, friendly, affable gentlemanbecause that’s not the contest. The decision is is Seatrain responsible and for how much. Soforget the Madison Avenue seller. Now, for example, in the orient they have professionalmourners that come to every funeral and cry and apologize and feel sorry. [Counsel] is aprofessional mourner here that was sent here by Seatrain so you will forget the real face ofSeatrain. The real face of the company that did this. [Counsel] is the facade.” In reversingthe judgment, the court cited the following language as particularly applicable:“It is time that the bar should realize thatwhen counsel in a close case resort to suchpractices to win a verdict, they imperil thevery verdict which they thus seek ***Themisconduct was repeated. It cannot bedeemed inadvertent or harmless. (CherryCr. Natl. Bank v. Fidelity & Cas. Co., 207App. Div. 787, 791.)”Escobar v. SeatrainLines, Inc., 175 A.D.2d 741 [1st Dept. 1991], 573 N.Y.S.2d 498.In a medical malpractice action, a new trial was awarded where plaintiff’s counselreferred to evidence that had been ruled inadmissible, suggested that the jury was beingprevented from hearing relevant testimony and made repeated prejudicial appeals to the13333

jury’s passion and sympathy. Although defense counsel failed to object to the summation, itwas held that “reversal is warranted in the interest of justice because the misconduct ofplaintiff’s counsel ‘did not consist of an isolated remark during questioning or summation,but a seemingly continual and deliberate effort to divert the jurors’ attention from the issuesto be determined’ (Reynolds v. Burghezi, 227 A.D.2d 941, 942; 643 N.Y.S.2d 248 [internalquotation marks omitted]).” Stewart v. Olean Medical Group, 17 A.D.3d 1094, 795 N.Y.S.2d420 [4th Dept. 2005].It is impermissible for counsel to tell jurors either directly or by implication that theyshould put themselves in their client’s place and render such a verdict as they would wish toreceive were they in that party’s position. (See Boshnakov v. Board of Education of Town ofEden, 277 A.D.2d 996 [4th Dept. 2000], 716 N.Y.S.2d 520; see also Liosi v. Vaccaro, 35A.D.2d 790 [1st Dept. 1970], 315 N.Y.S.2d 225 and Weintraub v. Zabotinsky, 19 A.D.2d 906[2d Dept. 1963] 244 N.Y.S.2d 905.) While we strive to bring jurors to the point where theyempathize with our clients, this must be done with utmost subtlety and finesse and notthrough any direct appeals to place themselves into the shoes of any litigant.However, fair comment on the evidence is permissible; the suggestion of alternativeways in which evidence may be interpreted is permissible; inviting jurors to consider theirday-to-day experiences is permissible and the broad bounds of rhetorical comment are notviolated by pointing out the insufficiency and contradictory nature of an opponent’s proof.(See Seltzer v. New York City Transit Authority, 100 A.D.3d 157 [1st Dept. 2012], 952N.Y.S.2d 26.)14334

Preservation, Preservation, PreservationNever lose sight of the rules of preservation and never allow your adversary to gain anunfair advantage by sitting silently by while he or she launches an inflammatory or otherwiseimproper summation. If you do, she’ll go further and further and you will have jeopardizednot only the verdict, but any subsequent appeal. It is imperative that objections be voicedcontemporaneously with any prejudicial remarks so that the trial judge has the opportunity togive a curative instruction if appropriate. (See Meyers v. Levine, 273 A.D.2d 449 [2d Dept.2000], 711 N.Y.S.2d 742.)In Chappotin v. City of New York, 90 A.D.3d 452 [1st Dept. 2011], 933 N.Y.S.2d856), plaintiff’s counsel failed to object to 13 of the 15 comments made during hisadversary’s summation about which he complained on appeal. These included references toplaintiff’s “play[ing] the system going on 15 years” and by noting that he had been “ondisability since 1995.” Although the trial court granted plaintiff’s motion for a new trialbased upon the inflammatory and prejudicial character of defense counsel’s summation, theAppellate Division First Department reinstated the defense verdict due to the lack ofpreservation. The dissenting justice urged that the court should have exercised its interest ofjustice jurisdiction due to the “seemingly continual and deliberate effort (by defense counsel)to divert the jurors’ and the court’s attention from the issues to be determined” (citationsomitted).15335

ConclusionThe effective summation will be delivered comfortably in your unique style. It willgive proper emphasis to critical points and will address squarely all important evidencewhether beneficial or detrimental to your client’s position. It will be persuasive and credible.The successful summation will prepare the jury for the charge on the law and will leave themwith no doubt as to the action you are urging them to take. It will remain within thejudicially established bounds of wide latitude. It will not contain prejudicial or inflammatorycomments which may jeopardize the potential verdict and detract from the truth findingnature of the proceeding, the decorum of the process or the dignity of our profession. Theclosing argument presents a unique opportunity to be creative and compelling. Prepare for it;practice it; savor it.16336

SUMMATIONS IN CIVIL TRIALSNYSBA Fall 2013Michael GlassRappaport, Glass, Levine & Zullo, LLP1355 Motor ParkwayHauppauge, New York 11749631-293-2300Summation represents your final opportunity to persuade the jury.By the time ofsummation, virtually all of the jurors have already formed opinions as to who should win andwho should lose. The role of summation, therefore, is to sway those few jurors who still remainundecided, and to arm jurors already on your side with the ammunition to convince adversejurors to change their opinion.I.THE LAW OF SUMMATIONSThe Court permits attorneys wide latitude to "fairly comment" on the facts and evidenceas borne out by the proof. Fair comment encompasses argument on every pertinent matter offact before the jury. Indeed, the permissible boundaries of summation are best defined by whatcannot be said. Thus, counsel may not: Comment On Facts Which Have Not Been Placed In Evidence. See Cattanov. Metropolitan St. Ry. Co., 173 N.Y. 565 (1903) (appeals to prejudice or passionor raising facts neither proved nor presumed have no place in the trial); Taggartv. Alexander’s Inc. 90 A.D.2d 542, 455 N.Y.S.2d 117(2d Dep’t 1982) (reversibleerror to permit defense counsel to refer to prior acts of the decedent insummation where there was no evidence introduced of such acts at trial). Request Damages In Excess Of The Amount Demanded In The Pleadings.See Pop Cowboy, Inc. v. 175 West 73rd Street Reality Corp., 292 A.D.2d 300,740 N.Y.S.2d 29 (1st Dep’t 2002), reducing a jury’s damage award where theaward exceeded the amount specified in the ad damnum clause. Make References To The Insurance Coverage Of A Party. See Young v.Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001) holdingthe lower Court properly sustained defendant’s objections to plaintiff counsel’s“veiled references to insurance” during summation; Rendo v. Schermerhorn, 24A.D.2d 773, 263 N.Y.S.2d 743 (3rd Dep’t 1965) holding defense counsel’sreferences to defendant’s lack of insurance cannot be condoned.337

Allude to a Party’s Ability or Inability to Respond in Damages. See Vassurav. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120 (2d Dep’t 1986), holding it wasgrossly improper for defense counsel to remark in summation that the defendantshave limited means and could not afford to pay a large judgment; Carey v. AAACon Transportation, Inc., 61 A.D. 2d 113, 401 N.Y.S.2d 1015 (3rd Dep’t 1978),granting a new trial where plaintiff’s counsel in summation commented on thedefendant’s ability to pay; Nicholas v. Island Industrial Park of Patchogue, 46A.D.2d 804 (2d Dep't 1974). In Nicholas, plaintiff's counsel stated in summation:"They're the corporations, they're the owner, they're the defendant, they've gotthe money, they've got the assets behind them." Nicholas supra at p. 41. Thecourt held that references to a defendant's ability to pay damages were improper. Act As An Unsworn Witness By Asserting Personal Knowledge the Facts inIssue. See Valenzuala v. City of New York, 59 A.D.3d 40, 869 N.Y.S.2d 49 (1stDep’t 2008) plaintiff’s counsel caused reversible error by continually voicing hisopinion as to the facts of the case during summation, which conduct amounted toa subtle form of testimony which could not be cross examined; Boruch v.Morawiec, 51 A.D.3d 429, 857 N.Y.S.2d 103 (1st Dep’t 2008) (it is improper fordefense counsel to call the Industrial Code a “stupid law,” but the comment hadbeen properly limited by a curative instruction).In addition to the foregoing, there is a general, but important, category of impropersummation commentary which can be best characterized as undignified, discourteous andplainly obnoxious conduct of such a significant degree as to compel a retrial. Some examplesfollow:Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep't 1982).Among the other excesses contained in the plaintiff's summation, was the following:"They will say anything to beat this case because, ladies andgentlemen, there is a lot of money involved here. They bring in aphony doctor for a price. . ." Id. at p. 318.Berkowitz v. Marriott Corporation, 163 A.D.2d 52 (1st Dep't 1990). In this case, averdict of nearly 8 million was reversed because of plaintiff counsel's remarks duringsummation, including calling experts hired guns, accusing the defense attorney of not evenhimself believing the positions his clients advanced, etc. This case is significant in that defensecounsel did not object to the comments as they were being spoken; rather, he waited until theconclusion of summation. Notwithstanding, the court ordered a new trial.Maraviglia v. Lokshina, 92 A.D.3d 924, 939 N.Y.S.2d 534 (2d Dep't 2012).338The

Second Department ordered a new trial based on a defense attorney's comments during trialthat the plaintiff's treating physician was the "go-to" doctor for people seeking

THE ART OF SUMMATION IN THE CIVIL CASE By Elizabeth M. Hecht, Esq. If we begin with the premise that the paramount role of the trial attorney is to persuade, then the summation, which is the final and least fettered opportunity to do just that, is placed in its proper perspective. The efforts at persuasion begin during jury voir dire and