Defense Attorney’s Arguments Constitute Misconduct

The Supreme Court of Nevada in the case of Lioce v. Cohen et al., 149 P3d 916 (Nevada 2006) held that the defense attorney’s arguments based upon jury nullification, personal opinion regarding the justness of a plaintiff’s case and invoking the golden rule argument amounted to attorney misconduct.

In four different personal injury trials in Nevada, a defense attorney made similar arguments during the trial. These arguments included an attempt at “jury nullification” [the Nevada Supreme Court defined jury nullification as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Black’s Law Dictionary 875 (8th ed. 2004). Examples include arguments that these cases wasted taxpayers’ money and jurors’ time. The defense attorney also argued that the cases were examples of people “looking for an excuse to sue someone at the drop of a hat” and that society now believed that “Americans have become a society of blamers.”

The Court also found that the defense attorney impermissibly injected his personal opinion about the justness of plaintiffs’ causes when he said that he had “a real passion for [these] case[s] and cases like [them],” because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what the defense attorney argued was the public’s negative perception of the legal system.
Finally, the Court ruled that the defense attorney’s closing argument, which contained a statement to the jurors, “You send your son or daughter” to a friend’s house, where he or she was injured, and questioned, “[D]oes that mean you just go out and sue[?]” (Emphasis added.) invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the plaintiff’s daughter’s injuries. The Court found that this question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter’s injuries instead of deciding the case on negligence law and the evidence.

This case underscores the obligation of defense attorneys to defend cases based only on the evidence and the law. The problem with defending against such unscrupulous tactics is the requirement of making timely objections to such argument. Most trial lawyer do not wish to make objections during the trial. This problem is actuated when the offending attorney makes repeated objectionable comments after an objection has been sustained. In cases where the comments rise to the level of “plain error” the Nevada Supreme Court created an exception of the need to object.

One method to deal with this type of conduct is to address it within the context of a motion in liminie prior to trial. In that way it is possible for the trial counsel and the court to be reminded of the rules before the “heat of battle”.

Indiana Trial Lawyers Association