Over the past two decades summations[i] in personal injury actions have veered off the rails into something far removed from their proper role and purpose.[ii] Unsurprisingly, this has coincided with the progressive rise in excessive and nuclear verdicts that unnecessarily clog our courts with litigation and unnecessarily raise the cost of living for our citizenry.[iii] While we previously discussed a number of the offending tactics[iv], in this article we focus on the most insidious and all-too-prevalent improper summation trope: the plaintiff’s attack based on the defendant’s purported “failure to take responsibility.”

A Proper Tort Litigant’s Summation: Fair Comment on the Evidence

A summation is intended to afford litigants a final chance to comment to the jury on the evidence presented during the trial proceedings. This right, however, is not completely unfettered and is bounded by several core tenets. “Counsel is restricted to the law in the case, the evidence adduced from the witnesses, the exhibits admitted into evidence, and the inferences reasonably deductible from the testimony and exhibits.”[v] “The purpose of closing argument is to help the jury understand the issues in a case by applying the evidence to the law applicable to the case. Attorneys … must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence. Moreover, closing argument must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response … rather than the logical analysis of the evidence in light of the applicable law.”[vi] Distilled to their essence, these rules collectively limit the parties to the right to offer fair comment on the evidence.[vii]

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