In part one of this article, we addressed the species of summation misconduct that we classify under the umbrella of “How Dare They Defend?” (HDTD) attacks. Drawing on our team’s decades-long and continuously-updated familiarity with outsized or nuclear verdicts that are inevitably reduced pursuant to CPLR 5501(c), we showed that these verdicts are routinely—in fact, almost exclusively—procured through HDTD abuse on summation. In other words, these tactics, once widely-recognized as unacceptable, have not only entered the mainstream, but are playing a central role in driving damages awards upward.

We then catalogued the various forms of HDTD attacks and called on the judiciary to take a more active role in identifying and policing these tactics (or, rather, re-take its formerly more active role in doing so).

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