Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors. This is, unfortunately, not an uncommon occurrence. Yet, I don't remember a case reversing a judgment in a civil case. Until now.
Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer. In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging. The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff. Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.
The case is called Burkert v. Holcomb Bus Service Inc.
Professional Liability Matters has more here.