• March 25, 2015

Image by Jeroen Moesz, subject to Creative Commons license.

Update (March 25, 2015): This past week, the Minnesota Supreme Court denied defendant’s petition for review of the decision described below. The plaintiff’s lawyer can now enjoy the relief that his crossing the line in closing argument did not blow up his client’s favorable verdict.

Original post (December 17, 2014): Trials are relatively infrequent and they are expensive. They are one-time (normally) theatrical productions or, if you prefer, laboratory experiments – that is, they are multi-player orchestrations, requiring a great deal of preparation, resources, and time. So courts understandably are extremely reluctant to order “encores.”

This reluctance, in turn, gives trial lawyers the incentive to bend, if not break, the rules — not egregiously so that they are all but assured stern condemnation and punishment, but just so much, just enough to help their cause without tanking the entire effort.

Giving into this temptation presents obvious and serious risk. I would invariably advise against it, across the board, in any case. But, on the other hand, lawyers can and do get away with shenanigans…

Heidi Weber brought a whistle-blower lawsuit against her former employer,  a for-profit university called Global University. The case went to trial. In closing argument, Weber’s lawyer argued to the jury:

I think what jurors don’t recognize is the power that you have. You have the ability, collectively, to change corporate conduct. You have more power than the president of the United States, Congress, you have more power than the pope to make and effectuate change. You have that power because you can hold this company accountable to what it did . . . for what it did to Heidi Weber. And this may seem crazy, but . . . Ms. Weber told you that they make $36 million a year on her program, $36 million a year. . . . . So you could do this. You could make a difference. You could make a real difference. You could, by your verdict, change the way every for-profit and career school does business because if you come back with a large verdict for Ms. Weber, I would submit that it will be on the front of newspapers, in the media around the country, for decades.

Now this is not a punitive damages case so you cannot award a sum of money to punish Globe, but what you can do is award a sum of money to hold them accountable and you can do it in the form of emotional distress to Ms. Weber. And if you come back with a number that is significant, and I’m going to tell you, suggest, and of course it’s your call, but this would change the way companies do business. And I’m serious, $36 million. On August 13, 2013, there will be discussion around the country, I’d submit, that you changed the way for-profit colleges do business and they would all step back and think twice. You have that power to do that if you have the courage.

(Opinion at pages 17-20 .) This argument was entirely inappropriate. The Court of Appeals correctly and unequivocally labeled it “attorney misconduct.” But, the Court went on to hold that

The inappropriate statements, however, did not prejudice Globe. The district court told the jury that the statements were made ‘in the spirit of a closing argument’ and that ‘this is not a punitive damages trial and you should disregard . . . any statements that have to do with publicity or any type of punishment.’ We assume that the jury followed the district court’s instruction. ….The jury instructions and the special-verdict form instructed the jury as to the types of damages that could be awarded. The jury awarded $36,000 for past embarrassment and emotional distress and $36,000 for future embarrassment and emotional distress. These amounts reflect that the jury listened to the district court’s basic curative instruction and did not award the punitive damages that Weber’s attorney advocated….

In short, the jury’s moderation saved the plaintiff’s lawyer’s bacon. Had they abandoned the trial court’s instruction and if they had taken up the plaintiff’s lawyers exhortation to wield power “greater than the pope’s” to whack Global University with a multi-million dollar verdict, I would suggest there is little doubt that Heidi Weber would have found herself back in court after a court of appeals’ rejection of a run-away jury verdict, which would not have done Weber (or the legal system) any favors.

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