Nearly a decade ago, this author wrote about how seasoned trial lawyers, arguing well within the rules, increasingly find themselves under attack from litigators unfamiliar with the line between proper and improper closing argument. That article observed how, at that time, courts seemed to disfavor after-the-fact objections to improper argument unless counsel objects at the time the argument was made. More recent state and federal decisions, however, indicate that courts in general, and federal courts in particular, have become more willing to conclude that so-called “incurable” arguments may require reversal of judgments—even if the appellant failed to object in the moment. Federal decisions have added lawyers’ ethical obligations to their evaluation of these claims.

These distinctions remain subtle, and courts’ approaches vary. Experienced trial lawyers likely will avoid problems in either venue by sticking to the evidence, focusing on sound principles of persuasion, and understanding the growing body of case law on this dynamic issue.