Saturday, October 1, 2011
ANY DOWNSIDE TO CHANNELING IN CLOSING ARGUMENT?
The Too Powerful Closing Argument
As was discussed and illustrated in the last post, the trial technique of channeling the deceased in closing argument can be extremely effective in bringing the case to life in the courtroom. Counsel speaks as the deceased, telling the jury how the deceased feels.
An example of the power of channeling in argument and its potential downside is reported in the Montana case of Heidt v. Argani, 214 P.3d 1255 (2009). Plaintiff’s attorney in that case was Steven Harman (pictured here). I’ve witnessed him channel when I served on the faculty for Montana’s School of Law Advanced Trial Advocacy course and can attest to the fact that he can be very persuasive with this technique
The Montana Supreme Court’s opinion described the closing and how it affected the jurors, one in particular, as follows:
“Heidt's case against Argani was tried in the District Court before a jury in October, 2008. On the fifth day of trial Heidt's attorney presented his closing argument to the jury. Most of the argument was delivered as a first-person narrative by Heidt's attorney who assumed the persona of Heidt's deceased husband to recount the events leading to his death. On appeal Heidt's attorney describes his presentation as ‘[c]hanneling... as though he was the decedent.’ 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. She attempted to leave the jury box and the court called a recess. The remaining jurors were taken to another room, and the ill juror was assisted into the jury room. She was attended by the defendant Argani, by Heidt's co-counsel Hammond, who is also a physician, and, with the District Court's permission, by three other jurors who were also nurses. Emergency medical personnel were summoned and took the ill juror to the hospital. Dr. Argani was with the ill juror for approximately fifteen to twenty minutes.”
Plaintiff moved for a mistrial, and the court took it under advisement. The trial judge got the jurors’ assurances that they could ignore what they saw – the defendant treating the juror – and decide the case on the evidence. Defense verdict and plaintiff got the verdict reversed by the Montana Supreme Court. The court relied on an Illinois and New York appellate decisions holding that when physician defendants had come to the aid of jurors that new trials were required. The Montana Supreme Court held, “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.”
Now, it could be argued that Heidt v. Argani illustrates that there was no downside to channeling in that case. Plaintiff got a second chance when a defense verdict was rendered. Plaintiff got a favorable verdict at the second trial. However, if this doctor-to-the-rescue of-a-juror situation were to reoccur in Montana, a savvy trial judge relying on Heidt would grant a mistrial and a lot of time and money would have been wasted. And, there are some judges who would sustain a Evidence Rule 403 objection to channeling.