Trial Advocacy; Golden Rule Violations: Placing the Jury in the Shoes of Your Client

New York Law Journal 

December 30, 2003, Tuesday

SECTION: NEWS; Pg. 3

HEADLINE: Trial Advocacy; Golden Rule Violations: Placing the Jury in the Shoes of Your Client

BYLINE: By Ben B. Rubinowitz and Evan Torgan; Ben B. Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf.He also is an adjunct professor of law, teaching trial practice at Hofstra University School of Law. Evan Torgan is a member of Torgan & Cooper. He is an adjunct professor of law, teaching trial practice at Benjamin N. Cardozo School of Law. Richard Steigman, an associate at Gair, Gair, assisted in the preparation of this article

BODY: 

Throughout any trial, from jury selection through summation, it is generally impermissible for counsel to allude to what has become known as the “Golden Rule.”

The rule itself has its origins in the Bible. There it is stated: “Do unto others as you would have others do unto you” or “and as ye would that men should do to you, do ye also to them likewise.”

Simply stated, the rule is one that prevents all counsel from asking or urging the jurors to place themselves in the position of one of the parties in the litigation. In any civil case, it is impermissible for any attorney to come right out and ask the jurors to grant a party the recovery that they would wish for themselves if they were in the same position. The policy behind this rule is that such argument appeals to sympathy and passion, in which the jurors are not asked to decide the case from an impartial standpoint but from a biased position in favor of a party.

Jury Departs From Neutrality

Thus, “golden rule” arguments are prohibited because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. n1

Moreover, if a juror is convinced to imagine herself in the circumstances of a party, the standards that she will be asked to consider [i.e., reasonably prudent person, fair and adequate compensation] will be altered. Indeed, the question “Would I do something like that?” could well lead to a different conclusion than “Was it reasonable for the defendant to have acted that way?” as could contemplation of “How much would I want for a broken leg?” versus “What should this plaintiff receive in compensation?”

Recognizing that your adversary is violating the rule may, at first blush, seem like an easy task; however, the subtle violations of the rule are the ones that are the most difficult to recognize.

This article will explore violations of the rule, from gross departures to subtle ones, and suggest that timely objections must be made if you are defending against the use of such a tactic. In addition, we will explore ways to make appropriate affirmative arguments that do not encroach on the dictates of the rule.

Illustrative of a gross, easily recognizable example of a violation of this rule is the following comment made in counsel’s opening statement:

Ladies and Gentlemen, for you to evaluate the evidence in this case and fairly decide the facts, you must put yourself in the position of [the plaintiff] and ask yourself: How would you feel if you lost a leg: or ask yourself: How would you feel if your son or daughter lost a leg? That is the proper way to evaluate the proof in this case.

Clearly, these comments are violations of the rule as would be the comment by counsel on summation:

“If it was your leg, would $3 million be enough?” In these examples, a clear appeal to sympathy and passion has been made.

However, it is not a violation of the rule when counsel merely approaches the rule but does not step over it:

To evaluate the evidence in this case, we will ask you to call on your everyday life experience, your everyday good judgment, your common sense as well as your human understanding and insight, in evaluating the effect that this loss of a leg has had on [my client].

Counsel must also beware of what has come to be known as the “reverse” golden rule because it is equally improper:

Ladies and Gentlemen, while I would never ask you to put yourselves in the position of [the plaintiff] who lost her leg, we will ask you to scrutinize the testimony of the witnesses as you evaluate the facts.

The comment, “While I would never ask you to put yourself in the position of [a party]” is itself a violation. The same logic that tells us that we cannot “unring the bell” or “not to think of a pink elephant” tells us that once the comment is made it has poisoned the minds of the jurors. Indeed, a curative instruction by the court might not do the trick and, depending upon the degree of the violation, a motion for a mistrial might have to be made.

Equal Opportunity Rule

The rule, however, does not belong to plaintiff’s counsel. It is an equal opportunity rule, which can be violated by either side or any party at any point during the trial.

Imagine, for example, jury selection in a medical malpractice case. After more than four hours of selection, in a multiparty case, a defense attorney stands up and asks a juror:

While evaluating the evidence, I’m going to ask you to step into the shoes of my client and determine whether the accusations made by plaintiff’s counsel are fair and reasonable.

In this example, defense counsel has clearly stepped over the line, violating the rule by asking the jury to “step into the shoes [of a party].” Less egregious, but equally violative of the rule, is where defense counsel makes the following comment during jury selection:

Evaluate the evidence in this case as if it was your own doctor who was being sued.

Counsel must constantly be aware of their adversary’s choice of words when it comes to determining if the rule has been violated. Something as simple as switching an “our” for an “a” during an opening statement can make all the difference in the world. Here, there is no impropriety:

Ladies and Gentlemen, this is a case about “a” driver’s worst nightmare — when a child darts out in front of the driver when there is no time to react.

Once the switch has been made, however, the impropriety and violation, although subtle, is clear:

Ladies and Gentlemen, this is a case about “our” worst nightmare as drivers — when a child darts out in front of “us” when there is no time to react.

In the second example, counsel has subtly asked the jury to step into the shoes of his client. If the violation is not recognized, and no objection made, the impropriety is waived.

Winning and Losing Cases

Failure to recognize or object to these types of arguments permits your adversary to have the jury personalize his case, rather than judge it as an objective outsider. In a close case, such a perspective shift could be the difference between winning and losing.

n1 For a multistate review of this topic see 70 ALR2nd 935 “Argument – Taking Position of Litigant”; See Also, Marcoux v. Farm Service and Supplies, Inc, 2003 USDist LEXIS 20481 [SDNY 2003]; Boshnakov v. Board of Education, 277 AD2d 996, 716 NYS2d 520 [4th Dept. 2000].