Boundaries of Closing Arguments – How to avoid crossing the line

“A jury trial is a fight and not an afternoon tea”.

This remark from a 1915 Ontario decision remains true today. However, lawyers occasionally forget that there are still boundaries in a jury trial that they cannot cross. Ontario’s Divisional Court recently discussed the scope of those boundaries when it ordered a new trial as a result of the inflammatory and irrelevant statements made by defence counsel as part of his closing address in a personal injury lawsuit.

In Abdallah v. Snopek, [2008] O.J. No. 729 (Div. Ct.) the majority of the Divisional Court (Justice Anne Malloy and Justice Dennis Lane) held that the defence counsel’s closing argument was offensive in the extreme, completely improper in many respects and inflammatory. As a result, a new trial was ordered.

The injured plaintiff, Abdallah, immigrated to Hamilton in 2000 from the West Bank in Israel. On Aug 11, 2001, Abdallah was involved in a motor vehicle accident when he was struck by a car that had failed to stop at a stop sign.

As a result of the collision, Abdallah experienced years of constant pain in his back, neck and shoulders, depression and a sleep disorder. The other driver admitted she was at fault for the collision, but her insurer denied that the plaintiff had sustained any injuries whatsoever.

In his closing to the jury delivered in May of 2006, William Evans, in-house counsel for Aviva Canada Inc., asked the jury to find that the plaintiff had not been injured. His closing remarks included statements such as “Canada wasn’t built by people who try to take advantage of a car accident to write their ticket” and the “Courts of Ontario are not an ATM machine”.

Evans implied that the plaintiff was an immigrant defrauding Canada’s social welfare system when he said “sure he [Abdallah] loves Canada. Why not? What’s not to love?”

Evans went on to say that the accident “should not be an opportunity for Abdallah to get a leg up on everyone else who comes to this country trying to start a new life.” He also asked the jurors whether they thought that Abdallah would “take that money and sit around the house for the next five years and use it for medical treatment, or do you suspect that he may find the energy and back strength to start his own business, perhaps not even in this country? Which do you think is more likely to happen?”

These statements were the basis of the appeal requesting a new trial.

Following closing arguments, the jury awarded Abdallah nothing for his injuries. In a contemporaneous ruling on a threshold motion, the trial judge, Justice Alan Whitten, found that Abdallah had suffered permanent and serious impairments of important bodily functions and held that he was a reliable and credible witness. The plaintiff appealed the jury’s decision.

The appeal court concluded that the anti-immigrant remarks were “not simple slips, or unfortunate stray comments made by counsel caught up in the heat of the moment.” Rather, they were part of a “definite theme” towards prejudice and emotion. The majority went on to say that Evans’ comment that Ontario’s courts “are not an ATM machine” had gone “far beyond the bounds of decorum. They are inflammatory.”

The Ontario Court of Appeal and Supreme Court of Canada have on numerous occasions stressed that counsel is afforded considerable latitude concerning the permissible scope of a closing jury address in a civil trial. As Justice Arthur Gans noted in dissent in Abdallah, “Counsel are required to advance their client’s cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel’s obligations as an advocate and officer of the court.”

However, inflammatory and irrelevant statements have no place in a closing address.

Abdallah shows the importance of objecting to the opposite party’s closing address if the address is on or over the boundary of what is acceptable. Counsel should never interrupt counsel during their jury address to make such an objection, but should wait until the end of the address. However, the court will occasionally interrupt counsel during both opening and closing addresses when counsel is going to far.

When the closing is over the edge, counsel may convince the judge to issue a corrective charge to the jury or even to strike the jury in particularly egregious cases. But even if the trial judge refuses to take any action whatsoever, by objecting counsel will increase the chances of success on any subsequent appeal on the grounds that the closing address was inflammatory, irrelevant and/or prejudicial.

Only in rare decisions such as Abdallah, where counsel has crossed the line by a considerable margin, will an appellate court order a new trial in the absence of a contemporaneous objection by counsel at the trial.

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