We’ve all been there. Opening statements are over, the evidence is closed and you just killed it with your closing argument. Nothing left to do but relax, let your guard down a bit and listen to your opponent’s closing argument.  Right?  Wrong!!!

While you may be tempted to zone out while your opponent sums up his case, you must remain on high alert for inappropriate statements or colloquy during closing arguments and be prepared to object. In civil litigation, it can be a million-dollar mistake.

The Supreme Judicial Court is set to consider whether such a mistake will cost Wendy’s and one of its suppliers an opportunity to set aside a $150,000 verdict rendered against it based on improper “reptile-based” remarks made by plaintiff’s counsel during closing arguments.  This morning, the Court will hear oral arguments in Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York and decide whether a trial judge applied the correct legal standard in declaring a mistrial after the jury rendered its verdict.  A Suffolk Superior Court jury previously found Wendy’s liable for severe dental injuries suffered by Meaghan Fitzpatrick when she bit into a hamburger that contained a bone fragment.

Before jury deliberations began, the defendants moved for a mistrial based on inappropriate statements made by plaintiff’s counsel. Defendants argued that Plaintiff’s counsel violated the “golden rule” by calling upon the jury to place themselves in the plaintiff’s position and to “be the voice of the community,” and send the defendants a message. Judge Heidi Brieger deferred ruling on the motion until after the jury returned a verdict for $150,000. Judge Brieger subsequently declared a mistrial, the case was retried, and a new jury returned a verdict for $10,000.

While the motion for a mistrial was an alert decision, as “reptile based” comments during closing arguments are almost universally prohibited everywhere, the failure to assert an objection immediately after they were made could prove to be a costly mistake for the defense. The Appeals Court appeared to focus on that very fact when it reversed Judge Brieger’s decision in 2019, holding that the defendants’ renewed motion for a mistrial should have been treated under the standard for granting a motion for a new trial.

The timeliness of an objection during summation is crucial to your case, and waiting until your opponent has finished, or after the judge has charged the jury is generally viewed as too late.  Some of us had mentors who taught us that nothing that is said during closing argument constitutes evidence. And our mentors were right.  Accordingly, many trial attorneys suddenly become potted plants during their opponents’ summations and choose politeness over their obligations to their clients.  They say nothing, even in the face of clear violations of some of the most basic rules of closing arguments: i.e., engaging in character assassinations of the plaintiff or other trial witnesses, arguing facts not in evidence, injecting personal opinions on credibility, appealing to the conscience of the jurors to send a message to the community, etc.  Objecting during your opponent’s closing argument when it is warranted is not rude or unprofessional – but it’s borderline malpractice if you don’t.  These are cardinal rules that cannot be forgotten about during summation and objections must be raised as soon as they are violated.

The Supreme Judicial Court will likely focus on the defendants’ failure to object in a timely fashion when it decides whether Judge Brieger applied the proper legal standard in granting a mistrial following the jury’s verdict.  Stay tuned.