The Court of Appeals of Iowa (“Iowa Appellate Court”) held in its opinion dated June 17, 2020 that the trial court in an Iowa medical malpractice case did not err in granting a new trial to the defendant doctor because the plaintiff’s lawyer improperly made repeated references to accountability during closing argument: “we find no abuse of the district court’s discretion in finding the manner in which counsel repeatedly referenced accountability suggested the term meant something other than legal negligence.”
The Iowa Appellate Court explained: “Plaintiff’s counsel began his closing argument by telling the jurors they held an “awesome power” that included the power to hold Stanford [the defendant doctor] accountable for Kipp’s [the plaintiff’s] injuries. Counsel then explained that “awesome power” also included the power “to be a hero.” While we express no opinion on whether it is proper to suggest jurors are heroes by performing their civic duties in general, we note the reference in this case suggested the jurors were only heroes if they found in favor of Kipp. It was not an abuse of discretion for the district court to conclude playing on the jurors’ notions of pride of being a hero only if they found in favor of Kipp was improper … [and] [i]t was not an abuse of discretion to conclude that referring to Stanford’s actions as a “betrayal” improperly focused the jury’s attention on the moral quality of Stanford’s alleged misconduct and suggested Stanford had been dishonest or deceitful.”
The Iowa Appellate Court further held: “The district court did not abuse its discretion in finding it improper for counsel to utilize the theme of “betrayal” or utilize these particular stories to characterize the opposing party as scheming or dishonorable, as “[c]ounsel has no right to create evidence by his or her arguments, nor may counsel interject personal beliefs into argument” … “[s]uch 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.””
The Iowa Appellate Court found further fault with another aspect of the plaintiff’s closing argument: “Another category of statements at issue is counsel’s references to the community and to the social consequences of the jury’s decision. Throughout closing and rebuttal arguments, counsel tied aspects of the case back to the community and the jury’s place in it, including framing the jury’s decision as something about which they will be asked by members of the community after the case ends and telling the jury the defense’s position “can’t be the standard here in this community.” We find no abuse of discretion in the district court’s conclusion such statements improperly urged the jury to focus on the greater societal impact and context of their decision and the reaction the community will have to the jury’s decision, rather than focusing the jury’s attention on the facts before it.”
The Iowa Appellate Court stated that having “concluded several of plaintiff’s counsel’s statements during closing and rebuttal arguments were improper, we must next determine whether the statements were prejudicial” and explained “On our review of the closing arguments in their entirety, the district court did not abuse its discretion in concluding it is likely a different result would have occurred but for plaintiff’s counsel’s improper arguments. Many of the complained of statements—counsel’s references to “accountability,” counsel’s references to Stanford’s refusal to take responsibility and “betrayal,” and counsel’s emphasis on community and the social consequences of the verdict to the individual jurors—were not “isolated missteps.” Id. at 73. Instead, they were “part of a theme for closing arguments that is premised on improper jury considerations.” Id. Plaintiff’s counsel made the improper statements throughout closing and rebuttal arguments, and likely influenced the jury’s liability determination, which the district court characterized as “the central and primarily disputed issue” in the case. While the district court gave a curative instruction following plaintiff’s counsel’s closing argument, counsel refocused the jury’s attention on the accountability, responsibility, and community themes in rebuttal. Defense counsel had no opportunity to respond to counsel’s rebuttal statements, and those statements were fresh in the jury’s mind when it began deliberations.”
The Iowa Appellate Court held: “Under these circumstances and in view of the significant deference given to the district court, we cannot say the district court abused its discretion in determining plaintiff’s counsel’s statements were improper, and we cannot say the district court’s prejudice determination rested on clearly untenable or unreasonable grounds.”
Source Kipp v. Standford, No. 18-2232.
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