Defense attorneys are often attempted to use popular and inflammatory anti-plaintiff rhetoric throughout their case – jury selection, opening, and closing, in particular. It has long been my view that this is improper for a variety of reasons. I felt so strongly about this that I drafted, and routinely file, the following motion in limine:
Defense counsel in cases of this type are sometimes tempted to attack plaintiffs using popular inflammatory political language for its demeaning impact on the plaintiffs, their counsel, and the process of resolving civil disputes by jury trial. Examples include argument that “anybody can go to the courthouse and file a lawsuit – all it takes is $200 and a piece of paper,” or “the courts have no quality control over lawsuits” or that civil lawsuits amount to nothing more than “litigation lotto.” Given that Mr./Ms. _____ is defense counsel here, we do not anticipate any such problem. Nonetheless, no such statements or innuendos should be permitted during trial of this case, as they are highly likely to persuade the jury to decide the case on passion and prejudice, contrary to UCJI 5.03. As a fairly recent opinion by the South Dakota Supreme Court states:
Defense counsel’s statement that plaintiff was trying to hit the lottery by her lawsuit demeaned not only the plaintiff but also the judicial system itself, and impugned the trial court’s judgment of allowing the punitive damage claim to proceed. The comments denigrated the fairness, integrity and public perception of the judicial system.
Counsel’s reference to playing lotto or powerball, or rolling the dice, were only meant to inflame the jury, and were beyond the bounds of proper final argument…. Interposing such remarks…can only be meant to persuade the jury to decide the case based on passion and prejudice. Schoon v. Looby, 2003 SD 123 (Oct. 8, 2003).
Such statements are irrelevant to the issues before the court, are unduly prejudicial to the plaintiff, and are capable of misleading the jury. OEC 401, 402, and 403. They are demeaning, amount to nothing more than a slap to the face to the civil justice system, and tend to mock our system of justice.
In the event Defendant, his/her witnesses, or his/her attorneys mention or argue that there is no “quality control” over lawsuits, or words to that effect, Plaintiff should be allowed to point out the availability of motions to strike, motions to dismiss, motions to make more definite and certain, motions for summary judgment, motions for directed verdict, and so-on, to show that there is, in fact, “quality control” within the civil justice system, or, at the very least, to have the court give such instruction to the jury.
I have generally prevailed using this particular motion in limine. I once had a defense lawyer argue that they can say whatever they want under the U.S. Constitution under the Freedom of Speech – I politely reminded the judge that this is not public speech, and if the defense attorney were correct, there would be absolutely no rules of evidence whatsoever. I won. However, do note that some judges will allow a little argument along these lines, but generally do prevent an outright assault on the Plaintiff, counsel, or the system at large. Different shades of gray, I suppose. In any event, I believe this line of argument improper, and most judges (and many defense attorneys) tend to agree.