A Sickening Closing Argument

The ABA Journal and a post on the Legal Profession Blog recently mentioned an AP story about an appeal in a medical practice case in Montana. The Montana Supreme Court ruled that the trial court erred in not granting a motion for a mistrial. See Heidt v. Argani, 2009 Montana 267 (August 14, 2009).

The story caught my eye for two distinct reasons. Let me explain.

In his closing argument in the trial of this medical malpractice action -- for alleged negligence by a medical doctor that caused the death of the plaintiff's husband -- plaintiff's counsel did what he and, apparently, Gerry Spence call "channeling"; that is, during closing argument plaintiff's counsel, in an effort (which was at least partially successful) to get the jury to imagine how the decedent must have felt (as a result of defendant's alleged negligence), spoke in the first person and pretended he was the dead husband and then spun out a narrative that showed -- supposedly -- how and what the husband felt as he was dying. (Plaintiff's counsel and, presumably, defense counsel saw no "other minds" problem here -- or other bodies problem, for that matter.)

But the channeling went further: plaintiff's counsel also described how and what the dead husband felt -- after his death -- as he was being autopsied and also after he was autopsied.

This argument about the husband's feelings after his death is in itself rather interesting. Does this part of the closing argument assume a fact not in evidence -- that dead people feel things after they're dead? (I assume that Montana law does not allow recovery for any such post-death pain and suffering.)

Well, if this is an example of channeling and if Gerry Spence is the originator of channeling, Spence has apparently invented a very effective form of trial advocacy. The closing argument by plaintiff's counsel was so effective that it apparently made one juror fall ill. The Montana Supreme Court's opinion recites:

After an extended closing, Heidt's attorney began to "channel" a description of the death of Heidt's husband, using phrases such as: "Then, oh my God, I'm dying." He then began describing being autopsied, including a description of being cut open and of his sorrow at not getting to see his children grow up.

This got to be more than some could bear. One of the jurors announced that she was "not okay" and that she thought she was going to pass out.

The upshot of this story was not (as you might expect) that defendant (the doctor) made a motion for a mistrial and that the Montana Supreme Court held that the trial court erred in not granting the motion. No, the upshot of this story was that the Montana Supreme Court ruled that the trial court erred in denying plaintiff's motion for a new trial.

If you are puzzled by this, it is perhaps because I have not yet told you the full story.

The rest of the story is that the defendant doctor gave the ill juror medical assistance. Because of that, the Montana Supreme Court ruled, the trial court should have granted plaintiff's motion for a new trial.

Hence, although Plaintiff's counsel perhaps won a battle by "channeling," he lost the war at the trial: the jury returned a verdict for the defending doctor. But the determined counsel for plaintiff got the Montana Supreme Court to give his client a second bite at the apple.

You can imagine why the Montana Supreme Court ruled as it did. At least several jurors who were also nurses also gave the juror medical assistance and witnessed (apparently) the medical assistance provided by defendant (and also, incidentally[?], by plaintiff's co-counsel, who also happened to be a medical doctor!), the Montana Supreme Court felt that the jury would be prejudiced by this and that plaintiff could not have a fair trial. (In the course of explaining this point the Montana Supreme Court noted with approval a similar case in which a New York State court had explained that the jury would be prejudiced because it had seen "the doctor competently administer care and possibly save the life of a fellow juror." One wonders whether it was partly this evidence of the defendant doctor's medical competence in another instance that alone disturbed the New York and Montana courts.)

The Supreme Court of Montana explained its ruling this way:

The situations in [Campbell v. Fox, 113 Ill. 2d 354, 498 N.E.2d 1145, 101 Ill. Dec. 637 (Ill. 1986), [Reome v. Cortland Memorial Hospital, 152 A.D.2d 773, 543 N.Y.S.2d 552 (1989)] and in this case arose in a unique situation-a medical malpractice trial in which the jury gets to see the defendant doctor reacting to a real-life situation and apparently successfully delivering life-saving care. The effect of this on the jury is immeasurable, whether or not individual jurors admit it or even consciously know it. We agree with the courts in Campbell and Reome and their assessment of the substantial impact on the jury of observing the actual drama in the courtroom, when compared to listening to testimony describing past events during the trial itself.

Well, well. There is much grist for discussion here. One issue the court might have meditated about a bit is the question, "What's so bad about drama?" Cf. Old Chief, 519 U.S. 172 (1997). Given the event that triggered the chain of events that led to the appeal -- the "channeling" by plaintiff's counsel that made a juror fall ill --, this seems not an reasonable question to ask and address.

But the most remarkable thing about the appeal is that the Montana Supreme Court uttered not one word about whether plaintiff's "channeling" was proper or improper. (We don't know if defense counsel objected to the "channeling.")

In connection with the question of "channeling" about matters such as a dead man's presumed feelings during his own autopsy, a post-appeal comment by plaintiff's counsel (noted in the ABA story) provides food for thought:

Harman [plaintiff's counsel] said the closing argument was the first time he tried “channeling” the likely thoughts of a decedent, and he hasn’t had occasion to use the technique again. But that doesn’t mean he won’t. 

“These types of arguments can be very effective,” he said. The only possible objection to a “channeling” argument, he learned in his legal research, is that it could inflame the passion and prejudice of the jury. “But in my opinion, that’s what good closing argument for a good trial lawyer is about,” Harman said.

Now, my dear Reader, do you interpret the comments by plaintiff's counsel Harman the way I do? Is he saying -- isn't he saying -- is he actually saying -- that a "good closing argument" is about "[inflaming] the passion and prejudice of the jury"?

Did Harman misspeak? Or was he just being candid?

If Harman was being candid, do you agree with him? If so, do you think part of the federal "prejudice rule" -- Federal Rule of Evidence 403 -- and its state counterparts should be repealed?

Federal Rule of Evidence 403 states in part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"

The best training for trial advocacy is plainly an appearance or two on Oprah Winfrey's show.

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Spindle Law's Evidence Module has material about the legal rules and principles governing closing arguments in trials.