Contribution and Indemnification for ERISA Fiduciaries
By Bethany Leigh Rabe, Litigation News Associate Editor – April 17, 2013

Most attorneys are familiar with the golden rule as it applies to damages, but less frequently considered is its application to liability. The United States Court of Appeals for the District of Columbia Circuit has chosen sides in the circuit split on the use of golden rule arguments, joining the Seventh and Third Circuits in holding that such arguments are inappropriate whether addressed to damages or liability. Caudle v. District of Columbia [PDF]. This decision flags a fairly common practice that, depending on the controlling law in the circuit, risks reversal on appeal.

The Golden Rule Argument
The “golden rule” is often referenced outside of the courtroom: Do unto others as you would like them to do unto you. The golden rule argument used in the courtroom is a variation on that theme. It tells the jury, “Put yourselves in the plaintiff’s shoes or the defendant’s shoes,” explains Brian Koji, Tampa, cochair of the ABA Section of Litigation’s Employment and Labor Relations Law Committee. This is impermissible because “you are essentially appealing to sympathies as opposed to the facts on the record.”

The Opinion
The issue arose in an employment discrimination case in which several police officers sued the District of Columbia alleging retaliation pursuant to Title VII of the Civil Rights Act of 1964. After a three week jury trial, the plaintiffs’ counsel made her closing argument and told the jury: “Now, ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office?” (emphasis added by the D.C. Circuit). Shortly thereafter, counsel made a similar statement: “Ask yourself this: Wouldn’t you think twice about complaining about workplace discrimination?” Both times, the court sustained the district’s objection.

Counsel then went on, telling the jury it was their job to determine how to make the plaintiffs whole, and stating: “As you make those decisions, we ask yourselves [sic] to put yourselves in the plaintiffs’ shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded….” After that statement, the district court sustained another objection, and instructed the jury not to consider the golden rule argument.

The jury returned verdicts in favor of the plaintiffs, awarding damages totaling almost $1 million. The district court denied the district’s post-trial motions, including those for a new trial and remittitur, and the district appealed. The D.C. Circuit reversed, holding that each of the statements was a golden rule argument. Although the plaintiffs argued on appeal that the golden rule argument did not apply outside the context of damages, the court disagreed: “It is no more appropriate for a jury to decide a defendant’s liability vel non based on an improper consideration than to use the same consideration to determine damages.”

The circuit court “is trying to tell trial attorneys ‘we’re not going to allow this, and if that means reversing a three week trial, we’re going to do so,’” explains Judge Ruben Castillo, Chicago, cochair of the Section of Litigation’s Trial Practice Committee. Reversing the outcome of a three week trial “is not something the Court of Appeals does lightly,” he adds. “They know how much time and effort and cost have gone into that trial.”

A Circuit Split
While all circuits agree that the golden rule argument is impermissible with respect to damages, there is a circuit split on the issue of whether it is appropriate as to liability. The Second, Fifth, Tenth, and Eleventh Circuits have each held that a golden rule argument that goes to liability is permissible. For example, the Fifth Circuit has held that an argument that is not unduly emotional and goes to the reasonableness of actions as opposed to the amount of damages was not prejudicial. Similarly, the Tenth Circuit held that it was not reversible error in a medical negligence action to ask the jury to “look at [the decision to administer a drug] . . . in the eyes of Dr. Rice on August 8, 1980, in his efforts to make a differential diagnosis.” The Third, Seventh, and D.C. Circuits have held there is no reason for a distinction in application between liability and damages, as the same considerations concerning emotion are present in both situations. The Fourth Circuit has implied agreement with the Third and Seventh Circuits, but has not expressly held the same.

Practical Considerations for Avoiding a Reversal
Given the seriousness of the reversal here, “a lot of education needs to be done in this area,” explains Judge Castillo. “Not only seasoned trial attorneys, but also seasoned trial judges need to know that they need to police these arguments. Just stop them. Say ‘counsel, you need to refrain from making that type of argument’ and try and protect the record,” he adds.

An attorney seeking to avoid reversal should “become knowledgeable with this whole area so that you don’t inadvertently—in an effort to advocate for your client—go too far and get into the questionable terrain of reversible closing argument,” recommends Judge Castillo. Similarly, if repeated objections are being sustained, counsel should “refashion the argument. To go back into it is inviting a reversal on appeal—something that doesn’t serve your client well.”

Koji appreciates the value of emotion and sympathy but cautions attorneys to use the more formal language instead of the shortcut “you.” “If you couch it in the terms of the standard—in this case the reasonable person standard—then you’re never going to go wrong.” “I would refer to it as ‘what would a reasonable person do?’ instead of ‘what would you, the juror, do?’” he adds. “You’re essentially arguing the same thing, but one is permissible and one is not.”

Keywords: golden rule, trial advocacy, closing arguments, circuit split

 
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