The Art of Closing Argument in Employment Cases

3:15 p.m. - 4:15 p.m.

Presented by

Friday, October 20, 2017

2017 Labor and Employment Seminar

Jill ZwagerrmanNewkirk Zwagerman, PLC 521 E Locust St, Suite 300Des Moines, IA 50309Phone: 515-883-2000

Jeffrey NobleBureau Chief, Intake DivisionPolk County Attorney's Office222 5th AvenueDes Moines, IA 50309Phone: 515-286-2159

Molly WeberIowa Attorney General's Office1305 E. Walnut St., 2nd FloorDes Moines, IA 50319Phone: 515-281-5309

PURPOSE OF CLOSING

•WIN YOUR CASE

•Give the Jury the Tools and the Ammunition they Need to Argue your Case to the other Jurors

SIMPLE IS OK

•Simple Power Point is Fine

•Too many gimmicks are DISTRACTING

CLOSINGS

•What I learned by reading a book on closings and what happens at trial are two different things

• Law school and some literature say draft your closing before trial starts

•My closing is never written before trial

•Why Not?

DANGERS OF PREWRITING CLOSING

•Married to your argument• Really good slide.

• Evidentiary Rulings

• Evidence Changes

• Be Flexible if You Write it before Trial.

REUSING CLOSING ARGUMENTS?

• If Case Tried Correctly, Other Closings Won’t Work

•May Use a Slide or 2, but the Argument Must be Specific to your Case.

•Reusing an Argument Can Feel Forced, Not Genuine

•Reusing Someone Else’s Argument Can Backfire

KEEP RACHEL FIRE

RACHEL

FIRE RACHEL

AUDIT SCORES

LICENSE

GOSSIPBACKLOG

KEEP RACHEL

SECOND IN RECOVERIES

LEAP

REORGANIZATION

STRUCTURE TO CLOSING-a Plaintiff’s Perspective

•Road Map

•One Claim v. Multiple Claims•Best Claims First and Last•More Complicated Issues in the Middle

•Generally Remember what you say First and Last

JANE PROVED HER CLAIMS

GenderDiscrimination

1Sexual OrientationDiscrimination

2Retaliation

3Whistleblower

4Equal Pay

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JANE PROVED HER CLAIMS

1 2

Retaliation

3 4 5

FACTS

•Which Facts to Include?

•Admissions?

•Quotes?

•Best Facts to Support the Claim

EXHIBITS

•Use Exhibits in Closing

•Remind the Jury which Exhibits are Most Important in their Deliberations

Barta Notes Exhibit 103 page 35

2017 Labor and Employment Seminar8:00 – 8:30 – Registration

12:00 – 1:00 – Lunch

3:00 – 3:15 – Break

3:15 – 4:15 – The Art of a Closing Argument in Employment CasesJill Zwagerman, Newkirk Zwagerman, PLC; Jeffrey Noble, Polk County Attorney’s office and Molly Weber, Iowa Attorney General's Office

EXHIBIT 1

BAD FACTS

•Don’t Ignore Bad Facts Detrimental to the Case

•Hit them Head on in Closing

•Do Ignore Minutia

OPPOSING ARGUMENTS

•Take Charge of Opposing Party’s Best Arguments/Claims

•Don’t Wait for Rebuttal

•When Defenses can be Neutralized, do so.

JURY INSTRUCTIONS

•Use the Jury Instructions

JURY INSTRUCTIONS

INSTRUCTION NO. 16

It is unlawful for an employer to discipline, transfer or terminate the partner or spouse of an employee because that employee made a complaint of discrimination or threatened to file a lawsuit against that employer.

JURY INSTRUCTIONS

•Use the Jury Instructions

•Use the Verdict Form

•Tell the Jury what you want them to do.

Danielle was sexually harassed

2 questions on sexual harassment

Rule in favor of Danielle on both of them.

On the supervisor sexual harassment claim of Plaintiff Danielle Rennenger, as submitted in Instruction No. 14, we find in favor of:

Danielle Rennenger ________________Plaintiff Danielle Rennenger Defendants

1.a. Have Defendants proved the defense as stated in Instruction No. 16?______Yes ____X___No

REBUTTAL

•Split up Rebuttal with Co-Counsel

•Different Perspective is Helpful to the Jurors•Everyone Perceives Evidence Differently.

• If Trying the Case Solo -Try Something Different

•Do NOT Rehash the Same Material

REBUTTAL

•Loosely Prepare Something for Rebuttal

•Listen and Respectfully Pounce

JURY IS THE MOST IMPORTANT

•Do Not Waste the Jury’s Time.

•Get to the Point

•The Jury Doesn’t Care about You.

•The Jury Cares about What they Need to Deliberate

•Give it to Them.

CASE LAW EXCERPTS ON OBJECTIONABLE CLOSING ARGUMENTS

• Do Not Express an Opinion on the Merits of the Case. Counsel for plaintiff argued in an employment discrimination case: “You know, ladies and gentlemen, I don’t take these cases very often, and I only take them when I think there is something there.”

Result: Improper, but did not require reversal. “Although counsel should not have expressed his opinion about the merits of the case, the department does not claim that the attorney behaved inappropriately at any other time, and we do not believe that this one isolated remark during the closing statement affected the jury’s verdict.” Stemmons v. Mo. Dep’t of Corr., 82 F.3d 817, 821-22 (8th Cir. 1996) (internal citation and citations omitted).

• Do Not Provoke Improper Argument.

Defense counsel in a criminal case suggested that the jurors “must look into a mirror each day” if they found the defendant guilty. In rebuttal, the prosecutor argued if the jurors looked into a mirror “they should see the victims and their relatives and friends.”

Result: Improper, but did not require reversal. “Where remarks in the prosecutor’s closing argument were provoked by remarks in defense counsel’s closing argument grounds for reversal can be destroyed. Although we do not approve the argument it is not reversible because it was provoked.” State v. Brewer, 247 N.W.2d 205, 215-16 (Iowa 1976) (internal citations omitted).

• Do Not Comment on Insurance or the Government Paying for

Damages.

Former wrestler, actor, and Governor of Minnesota Jesse Ventura sued for defamation, but his attorney improperly commented on insurance coverage during closing arguments: “Sharyn Rosenblum testified that she did not know her company’s insurer is on the hook if you find that Jesse Ventura was defamed. Both her and Peter Hubbard also testified that they do not know that their company’s insurer was paying for the defense of this lawsuit. But they are not the disinterested, unbiased witnesses they were put in front of you for you to believe. It’s hard to believe that they didn’t know about the insurance policy because it’s right in Kyle’s publishing contract. Paragraph 6.B.3. of Exhibit 82, Chris Kyle is an additional insured for defamation . . . .”

Result: Improper, required reversal. “[W]e must conclude Ventura’s counsel’s closing remarks, in combination with the improper cross-examination of two

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witnesses about Kyle’s insurance coverage, prevented Kyle from receiving a fair trial.” Ventura v. Kyle, 825 F.3d 876, 884-86 (8th Cir. 2016).

Plaintiff’s counsel repeatedly referred to the police as representatives of the government and explicitly stated twice that “the government owes.”

Result: Improper, required reversal. “The general rule in the state courts and under Fed. R. Civ. P. 61 is that interjection of the fact that the defendant is protected by insurance or other indemnity may be prejudicial error requiring reversal. The reasoning behind this rule with regard to testimony or argument concerning the defendant’s insurance or indemnity protection is that it will result in an unduly generous award of damages by the jury. . . . We hold that the district court’s allowance of [plaintiff’s] counsel’s closing remarks without special admonition or instruction to the jury constituted prejudicial error sufficient to require reversal. . . . In the context of the entire mosaic, these statements both explicitly and impliedly directed the jury that the police would not pay but their employer would. The police do not cite any authority specifically holding that a closing argument which implies that the government will pay damages in a section 1983 case is prejudicial. We see no distinction between this and the injection of testimony or argument concerning insurance, however. We believe that the jury’s apprehension that the government would be responsible for paying damages could result in an overly generous award of damages. Therefore, the district court committed prejudicial error requiring reversal of the judgment.” Griffin v. Hilke, 804 F.2d 1052, 1057-58 (8th Cir. 1986) (internal citations and citations omitted).

• Do Not Argue That the Jury Should “Send a Message” (Unless

Punitive Damages are Allowed).

In the closing, plaintiff’s counsel repeatedly used the phrase “send a message.” Result: Should be avoided, but did not require reversal. “Although the use of such a phrase may invite some passion and should be avoided, the phrase was not used so frequently that we are able to conclude a different result would have been reached absent the use of the phrase.” Delaney v. Bogs, 873 N.W.2d 301 (Table), 2015 WL 7075815, at *12 (Iowa Ct. App. 2015).

• Abide By the Court’s Rulings.

Counsel for plaintiffs repeatedly violated the district court’s ruling on a motion in limine.

Result: Improper, required reversal. “Plaintiff’s counsel persistently made statements referring to matters that were barred by the court’s ruling on the motion in limine. In particular, counsel referred several times to the amount of money Weil-McLain was spending in defending the case and this in turn highlighted the corporate wealth of Weil-McLain and compared it to the

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circumstances of plaintiffs. Counsel for plaintiffs also improperly told the jury to send Weil-McLain a message and told them Weil-McLain had been engaged in litigation for thirty years, also contrary to the pre-trial rulings. This continuous disregard for the court’s rulings could not have been ‘a slip of the tongue’ and was not an isolated incident. In considering the closing arguments in their entirety, we conclude it appears quite probable a different result would have been reached but for the misconduct of plaintiffs’ counsel, and therefore, Weil-McLain was prejudiced. . . . Based on the multitude of improper statements during closing arguments, we determine the district court’s decision must be reversed and the case remanded for a new trial.” Kinseth v. Weil-McLain Co., 900 N.W.2d 617 (Table), 2017 WL 1400801, at *3-7 (Iowa Ct. App. 2017).

• Stick to the Evidence in the Record. Counsel for plaintiff described her own personal experience with sexual harassment.

Result: Improper, required reversal. “Having carefully reviewed the entire trial record, we are left with the firm conviction that the timing and emotional nature of counsel’s improper and repeated personal vouching for her client, using direct references to facts not in evidence, combined with the critical importance of Gilster’s credibility to issues of both liability and damages, made the improper comments unfairly prejudicial and require that we remand for a new trial. This is not an action we take lightly . . . . However, as we said many years ago in an opinion that has been frequently cited by other courts, ‘when a lawyer departs from the path of legitimate argument, [s]he does so at [her] own peril and that of [her] client.’” Gilster v. Primebank, 747 F.3d 1007, 1013 (8th Cir. 2014) (quotation omitted).

Counsel for plaintiff included religious imagery and personal opinion in his argument.

Result: Improper, required reversal. “We also find Rosenberger’s counsel’s melodramatic antics throughout final arguments may have further prejudiced the jury. In his closing argument, counsel attempted to play to the passions of the jury through religious imagery and interjection of his personal opinion as to the merits of the case. Counsel has no right to create evidence by his or her arguments, nor may counsel interject personal beliefs into argument. This is true whether the personal belief is purportedly based on knowledge of facts not possessed by the jury, counsel’s experience in similar cases, or any ground other than the weight of the evidence in the trial. . . . we believe counsel crossed the line between using the evidence to persuade the jury and impermissively asserting his personal opinion. We further find that counsel inappropriately attempted to influence the jury by references to his personal religious belief in God and the death of his father. Such melodramatic argument does not help the jury decide their case but instead taints their perception to one focused on emotion rather than law and fact.” Rosenberger Enters., Inc. v. Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 908 (Iowa Ct. App. 1995) (internal citations omitted).

STORY TELLING TACTICS

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OVER-ARCHING CONCEPTS o Character. You must have at least one person the listener will care about. Introduce this key player (and a few other key players) by name.

If there are more than two names to remember, use a visual aid. If more than one relationship is significant, use a visual aid.

The identity of others – who are not the main character(s) – can be referred to by their role. The jury will then not have to remember a name. (E.g. the detective, the first officer to arrive, the cashier, Nora’s teacher, defendant’s father).

The best perspective for the story is not necessarily the main character’s perspective. The main character in the story is not necessarily the main victim.

o Conflict. You must have, and emphasize, a conflict or injustice to have a story. Preferably one the jury can act upon with a verdict. Show the jury the injustice with details, not with conclusions. Don’t blink. If the details are graphic, use graphic words.

o Structure the story to create and re-create mystery: Embed drama by setting up and solving mystery. Emphasize unanswered question, omissions in knowledge. Use teasers and cliff hangers. Looking beyond simple chronology can help.

o Have and use a theme. Theme think time pays dividends:

Theme creation time means better identification of key facts and. . . . . . often begets great one-liners that aren’t quite good enough to be the theme.

START STRONG

o Why? Primacy: People tend to remember and internalize what they hear first. Information people hear in the middle of a story tends to blend in with other facts

and is, therefore, de-emphasized – so confront bad facts and weaknesses midstream.

ADOPT PERSPECTIVES o Visual Perspectives. Most people learn visually, so pepper the story with visual

images, use visual words. Frame visual images.

o Look for Unique Perspectives: a child, dog, security camera, doll, a fly on the wall. o Switch Perspectives to increase drama and emphasize mystery. Loud noises are a great time. Screams, gunshots, car crashes.

STORY TELLING TACTICS

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Flashbacks or flashforwards. Split the Story Line Step Aside (to explain terminology, or describe pertinent details) – this can help

pacie the action in a short story. Beware of the victim’s perspective which can make the event appear more

drift.

Steal Media Tactics o Verbally zoom-in, and/or close-up. o Freeze Frame – especially at pivot points in the story (when decisions are made). o Use teasers & cliff-hanger clauses o Use Magical Three’s

VISUAL AIDS

o Visual aids emphasize, simplify, clarify and break up the monotony of the spoken word.

Use them. A simple timeline, for example, can eliminate hours of confusion in deliberations.

END STRONG

o Recency: People tend to remember and internalize what they hear last. o Strongly, confidently, fluidly. Even if the bod isn’t committed to memory, your

conclusion should be. o Tell the jury what you want them to do: E.g. “At the conclusion of the evidence and based on the evidence, we’ll ask you to

return a verdict finding he defendant guilty of . . . o Reiterate your theme.

DELIVERY

o Demeanor? James McElhaney, wisely, recommends a “Helpful Guide” demeanor. McElhaney is the author of Trial Notebook and Litigation. (Available from the

ABA). I strongly recommend the author and these books.

CLOSING Generic Powerpoint Form for Visual Argument

Element 1

Element 2

Element 3

Element 4

CAUSE OF ACTION

Element 1

Bullet Point 1

Bullet Point 2

Bullet Point 3

CAUSE OF ACTION

Element 1

Element 2

Element 3

Element 4

CAUSE OF ACTION

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Element 2

CAUSE OF ACTION

Copy this slide as necessary & insert: • Definitional Instructions • Inference Instructions • Diagrams • Photographs • Audio • Video • Visual Argument

Element 1

Element 2

Element 3

Element 4

CAUSE OF ACTION

√ √

Element 3

CAUSE OF ACTION

Copy this slide as necessary & insert: • Definitional Instructions • Inference Instructions • Diagrams • Photographs • Audio • Video • Visual Argument

Element 1

Element 2

Element 3

Element 4

CAUSE OF ACTION

√ √ √

Element 4

CAUSE OF ACTION

Copy this slide as necessary & insert: • Definitional Instructions • Inference Instructions • Diagrams • Photographs • Audio • Video • Visual Argument

Element 1

Element 2

Element 3

Element 4

CAUSE OF ACTION

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