LaPorte County personal injury lawyer discusses improper closing argument in a car accident case and why the appellate court called the insurance defense attorney out for his actions.
Some attorneys have a win at all costs mentality. We see this type of thing a lot of closing arguments. The jury's purpose in a civil case is to apply the facts of the case as it understands them to the law that is explained to the jury by the judge. The purpose of closing argument is for plaintiff or defendant to persuade the jury what the facts mean. It is improper for an attorney to comment on matters outside the record or to appeal to the jury's biases, prejudices or fears.
In a recent car accident case, the defense attorney made the following arguments. I will comment about the inappropriateness of these arguments after each paragraph.
Well, now you know why we're here. That's why we're here. That's why they've been chasing Brandy and Hermann Ventures for the last two and a half years. That's why we're here…. Speaking of Hermann Ventures, why is it in the case at all? What did Hermann Ventures do wrong? You heard Brandy testify that she went through a pre-employment screening, background checks, driving checks, license checks, you name it. Nothing wrong so they hired her. But if Brandy is liable, it's liable. Even though she doesn't work there anymore. Is it any wonder employers aren't hiring these days…
This part of the insurance company lawyer's argument seems to suggest that the reason why the injured person is in court is because there is a deep pocket. He also seems to suggest that it is improper to sue and employer when an employee is negligent in the course and scope of their employment and if the jury would find for the injured person, people (jurors) would not get hired.
This argument is improper for a number of reasons. First, it brings up the wealth or financial disparity between the parties. Second, it is not improper for an injured person to sue an employer – if an employee was negligent. This is the doctrine of respondeat superior. Finally, you can see how the attorney is playing to the jury's fears insinuating that if they compensate the injured person – employers will not hire workers. When the truth is – it is the insurance company that is controlling settlement – not the employer.
Let's look at what happens later, what happens after the emergency room to make [Lane] think he's horribly injured and that this was a life altering accident? Well, the first thing he did, that we found out yesterday, was hire a lawyer. Now, I don't know about you but unless somebody dies I'm not lawyering up right away. But that's what he did. Maybe we're just that kind of society now. He didn't even wait to see a doctor on the follow up visit. He went straight to his lawyer. And lawyers don't help you get any better. That's what Dr. Yount told us today. He said in fact you're less likely to get better if you go to a lawyer, and that makes sense `cause I'm a lawyer and I can't cure anything. [Lane's counsel] had a good visual yesterday. You remember, he had this stack of records here, and he said look at the medical records he had before the accident, there's just a couple. Then look at the stack of records he's had after the accident. Look at that. I submit to you there's a couple of ways you can look at that. The way he suggests is one way. I suggest a way to look at that is this is the amount of medical records he had before the accident, and this, this big stack, that's the amount of medical records he had after he got a lawyer…
The insurance company lawyer next argues and seems to suggest that the lawyer and the injured party had some sort of conspiracy going because the injured person hired a lawyer shortly after the crash. An injured person has a right to hire a lawyer and when he hired a lawyer is irrelevant to the jury's determination. Next, the insurance defense attorney insinuates that if they give the injured person compensation that they are fostering a litigious society.
Mr. Lane sat up here yesterday and told us — the question from [his counsel] was, what has Dr. Poovendran recommended? Massage therapy. Have you had it? No. Why not? I can't afford it. Where did the money go? Well, we know that $3,000 of it went for one hour of Dr. Gottlieb's time [for a deposition]. He's investing it in litigation, not in treatment. And do you trust what Dr. Gottlieb is telling you? Why would he say surgery is necessary? Money. He does 300 of those surgeries a year. They take about an hour to do, and he didn't tell us what his charges for that hour are, but he says the surgery could cost $200,000.Now that is ridiculous. You don't need me to tell you that. You don't need Dr. Yount to tell you that — just like you don't need a weather man to know which way the wind blows. Two hundred thousand for an hour's worth of surgery is ridiculous. And think of this, if he does 300 of those a year at $200,000 a pop, you know what that works out to? I do because I added it up before coming up here this morning. That amounts to 60 million dollars. Sixty million. If Gottlieb only gets ten percent of that 60 million, just 10 percent, that's still 6 million dollars that he gets a year from an hour's worth of work for 300 days a year. It's no wonder that Dr. Gottlieb recommends surgery at the drop of a hat. Got a hangnail? Let's operate…. So why operate when physical therapy is working. Money. Is it any wonder our health care system is broken…
Again, the insurance defense attorney plays to the jury's fears and insecurities regarding medical expenses. He seems to suggest that the doctor is also part of the lawyer and injured person's conspiracy and the doctor is motivated by money in this case.
We know that juries have a number of biases and prejudices against injured people partly because of tort reform and rhetoric in the news. It is important to flesh out this information in jury selection. An attorney is supposed to be advocate for their client; however, he is supposed to advocate within the rules of law and not comment on information that is outside the evidence and appeal to a jury's fears and biases.
As you can see, Indiana personal injury is complex and even with clear cut accidents, some folks do not receive the compensation they deserve. What are your thoughts about a “win at all costs mentality”.