• July 17, 2014
Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

One of the most widely noted and discussed Eighth Circuit decision over the past year or so (among my odd constellation of friends, colleagues, and countrypeople) was the Gilster v. Primebank decision where the Eighth Circuit warned lawyers not to “depart from the path of legitimate argument” in closing argument at the risk of getting a favorable verdict thrown out. (Here is an earlier Minnesota Litigator post on the Gilster decision.)

The Court has recently again highlighted the message to civil litigators: the free rein given to lawyers in closing argument is not without its limits and you really want to do all you can to avoid exceeding those limits…

The decision Valadez v. Watkins Motor Lines should be required reading for Minnesota civil litigators (and others) so that they can appreciate the concept of “opening the door” and the limits of that doctrine.

For those who are unfamiliar with the doctrine, it plays out at trial along these lines: Let’s say, (1) Party A seeks and obtains a ruling from the trial judge to exclude evidence of a civil fraud lawsuit from 15 years ago in the current case on an unrelated civil matter; (2) At trial, Party A testifies, in passing, that “everyone knows Adversary B was sued for fraud years ago,” so (3) Adversary B’s lawyer objects, protests, and argues to the judge that Adversary B should now be allowed to elicit evidence of Party A’s fraud lawsuit because Party A “opened the door” by injecting other inadmissible evidence along similar lines into the case about her client. This seems fair, does it not?

But the “opening the door doctrine” can get more complicated and it did in the Valadez case.  Party A’s reference in the case to an excluded highway accident investigation report was for cross-examination, not offered as substantive evidence. And the Court also pointed out that “opening the door,” in any event, has to be proportional to the initial evidentiary mis-step. Here, not only was there no mis-step, actually, but also the defendants’ remedy for the supposed “door opening” was incommensurate with the evidence elicited by the plaintiff. One cannot fairly remedy a trivial evidentiary error by throwing out the rules of evidence for the opposing party…

But I note the Court’s closing thoughts, in particular:

We are particularly troubled by Mr. Swift’s emphasis of this evidence in his closing. In closing, Mr. Swift reminded the jury of what the ‘official highway report’ concluded—that Valadez was at fault and that Watts was not at fault. This is exactly the sort of opinion testimony about an ultimate conclusion that we have cautioned merely tells the jury what result to reach and is therefore not sufficiently helpful to the trier of fact to be admissible.

[Internal quotations omitted.] The 8th Circuit threw out the jury verdict in the defendants’ favor.

When the time for closing argument rolls around, trial lawyers will probably try to be passionate, to be interesting, to be emphatic, and, mixing emotion and clear exposition of evidence in the case, they will, of course, try to advocate their case to the max. But, if they get carried away and let passion exceed judgment, it can all be for nothing.

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