Hemmings v. Tidyman's Inc.

RONALD M. GOULD, Circuit Judge,

Concurring in part and Dissenting in part:

I respectfully dissent from the majority’s view in part IVC that the misconduct of plaintiffs’ counsel during a part of closing argument by Ms. Price Sadich did not prejudice defendant. I would hold that counsel’s statements that she had sued defendant before and that defendant’s failure to change its practices after that prior suit “proves our case” 1 were so improper and inflammatory as to call the integrity of the proceeding into serious question and to violate due process. 2 Moreover, because I *1207 view those statements as fundamental error that in context was necessarily prejudicial, I would give relief for the improper argument and hold that the district court abused its discretion in failing to grant defendant’s motion for a new trial on the basis of those improper statements.

Accordingly, I respectfully dissent from part IVC of the majority’s opinion. However, because I agree with the majority’s analysis of the other issues in the case and believe that, if a new trial were granted, it would be preferable to resolve those issues to guide the trial court, I concur in the majority’s analysis with respect to parts I, II, III, IVA, IVB, V, VI, VII, VIII, and IX.

Because defense counsel did not object to counsel’s statements during closing argument, we “review for plain or fundamental error, ... where the integrity or fundamental fairness of the proceedings in the trial court is called into serious question.” Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir.2001). In Bird , we concluded that a closing argument in tribal court that characterized the dispute between an Indian-owned company and a non-Indian-owned company as racial in character violated due process and therefore precluded granting comity to the tribal court judgment. We reached that conclusion even though no objection was made to the closing argument in tribal court. Id. at 1152 .

The egregiousness of counsel’s misconduct here by arguing that counsel had sued Tidyman’s for discrimination before and the potential prejudicial effect of that misconduct are similar to that which occurred in Bird . Here, counsel put herself in the role of a testifying witness during the rebuttal portion of plaintiffs’ closing argument and thereby flouted multiple procedural, evidentiary, and ethical constraints.

First of all, it is well-settled that the scope of closing argument must be limited to the evidence that was introduced in the case-in-chief; new evidence must not be introduced during closing argument. See, e.g., United States v. Barron, 575 F.2d 752, 758 (9th Cir.1978). Counsel’s description of the prior suit against Tidyman’s went beyond the scope of any prior evidence submitted on that issue and was error.

Secondly, the law recognizes an entrenched proscription against counsel’s testifying in a case which she is trying, absent limited exceptions not at issue here. Among other interests, this proscription serves to avoid undue prejudice resulting from the jury’s attributing increased credibility to the statements of counsel because she is an officer of the court, and it prevents counsel from simultaneously subjecting herself to the conflicting roles of advocate and neutral witness. See, e.g., United States v. Birdman, 602 F.2d 547 , 552-53 & 553 n. 14 (9th Cir.1979), and cases cited therein; see also Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 502 (Ariz.1978) (“A fundamental rule of American jurispru *1208 dence prohibits an attorney from testifying in a case he is handling.”)- Counsel was not sworn here, but, as in Hales , the argument in substance gave improper testimony.

Finally, in this case, much of the evidence referred to in closing argument regarding a prior discrimination suit against Tidyman’s had already been excluded by the trial court during the case-in-chief. Thus, there should have been no question in counsel’s mind that a discussion of that excluded evidence would be improper. See Hales, 576 P.2d at 501 . Moreover, the allusion to a prior discrimination suit against Tidyman’s in order to raise the inference that Tidyman’s was acting in conformity with its prior conduct violated Rule 404(b), which generally prohibits the use of evidence of prior bad acts to show conduct in conformity therewith. See Fed. R.Evid. 404(b); Becker v. ARCO Chem. Co., 207 F.3d 176, 194-203 (3d Cir.2000). 3 If counsel had sought admission of the evidence during the case, rather than slipping it in sub silentio during closing argument, defense counsel could have raised a Rule 404(b) objection. If brought in evidence in the case-in-ehief, the defense could have answered it with evidence. If identified as admissible, it might have been presented to the jury with a limiting instruction. Counter evidence might be presented or an argument might be fashioned to meet evidence that the court admitted. But none of that happened. For when plaintiffs’ counsel in rebuttal closing argument — -virtually the last word to the jury from counsel — testified to and argued the fact of asserted prior discrimination against women, she denied Tidyman’s its opportunity for a fair hearing and denied Tidyman’s the due process to which it is entitled. 4 On this record, where discrimination was vigorously contested and much turned on characterizations and questions of degree, Tidyman’s was necessarily prejudiced by the improper argument.

There is no question in my mind that counsel’s outrageous behavior asserting prejudicial facts outside the record in the final moments of closing argument was very prejudicial. Although, as the majority points out, plaintiffs’ counsel attempted to question Dr. Polissar, plaintiffs’ statistical expert, about the prior suit against *1209 Tidyman’s during its case-in-chief, the majority fails to accord due weight to the facts that defense counsel objected to that line of questioning and the objection was sustained. The majority glosses over the likely impact of the argument of previously excluded evidence. Because the objection was previously sustained, absent the improper comments during closing argument, the jury would have known that it was not to consider the evidence of a prior suit against Tidymaris, as testified to by Dr. Polissar. Moreover, the level of information about the prior suit divulged before defense counsel’s objection was limited: it did not put the jury on notice of the nature of the plaintiffs claim, 5 it did not suggest that Dr. Polissar’s analysis revealed statistically significant disparities, and it did not imply that the prior case alleged sex discrimination, nor did it imply that the prior discrimination case was resolved in favor of the plaintiffs.

The majority also relies on the fact that one of the plaintiffs, Hemmings, was asked on direct about prior lawsuits against Ti-dymaris. However, what the majority fails to acknowledge is that, like the testimony of Dr. Polissar, Hemmings’ discussion of the lawsuits was limited. She noted that Tidymaris had been sued by two women and two men and that the women had sued the company for “discrimination.” 6

By contrast to the testimony in the casein-chief, the unadmitted evidence slipped in during closing argument implied that the plaintiffs’ claim in the prior suit was similar to the plaintiffs’ claim here, involved the very same allegedly discriminatory policies, and was resolved favorably to the plaintiffs. It is axiomatic that the potential prejudicial effect of prior bad acts evidence increases with the degree of similarity between the charged act and the prior acts. 7 Moreover, the testimony by counsel that she had previously sued Tidy-maris may have had more credibility in the eyes of the jury than that of the other witnesses because she is an officer of the court and would appear to the jury to be expert in the laws governing discrimination.

I am sorry to say that the apparent goals of the improper closing argument were transparent: 1) to make defendant’s conduct seem more egregious because of its allegedly long-standing character and the fact that defendant was on notice of its wrongfulness, 2) to encourage the jury not to hold back in punishing defendant for that conduct, and 3) to encourage the jury to give the same type of “impassioned sanction” that was wrongly sought by improper argument in Bird . No evidence of similar scope had been admitted in the *1210 case-in-chief. Given the size of the jury verdict, it is probable that the jury took counsel’s improper and unsubstantiated admonishments to heart. I must respectfully dissent from the majority’s conclusion to the contrary. 8

. Counsel's statements were as follows:

Unless you are a man starting in the night crew, you don't get ahead. That policy is what we object to. There is no business necessity for it.

Now, could Tidyman’s have fixed that policy? Easily. Write up objective criteria, write up job descriptions, ... do job evaluations, ... provide equal opportunity for people who apply for these positions.... They have not corrected any of these policies and they knew that they should because this is not the first time they have been sued. I have sued them before in 1994, so they had subjective policies which had a disparate impact on all women, including plaintiffs, and that proves our case because they did not have a business necessity for doing it, and there were ways to fix it.

(Emphasis supplied.)

. Tidyman's also objects to statements during closing made by another of plaintiffs' counsel, Mr. Eymann. His challenged statements in argument included comparing a disciplinary meeting with Lamphiear to a "rape in the alley,” suggesting that a female Board member on defendant’s Board of Directors was a token woman, and insinuating that defendant’s counsel had a female paralegal seated with them in order to give the impression of being fair to women. I consider all but the last of those statements to be within the realm of permissible rhetorical flourish. The jury could readily comprehend that Lamphiear was not actually raped and it could decide for itself whether to view the female Board member as a token. The rape argument is a metaphor supporting plaintiffs’ case, and the characterization of the Board member as a token was merely argument favorable to plaintiffs' view of the evidence that was before the jury.

On the other hand, the characterization of a paralegal on the defense team in my view is *1207 off the mark of proper argument, which is to be directed at the evidence and issues for the jury relating to the parties' conduct, not the opposing party's legal team. But that reference was not sufficiently detrimental to warrant relief and was not so unfairly prejudicial as to violate due process. The jury could also assess the marginal import of a lawyer's characterization of opposing counsel or the opposing legal team.

But, as explained above, the closing argument of Ms. Price Sadich, suggesting that her prior suit against defendant proves the plaintiffs' case, is of a very different character. Counsel has a duty during argument to state the client's case in the most advantageous light based on the evidence that was admitted. There is nothing wrong with proper uses of rhetoric and persuasive skills to characterize evidence admitted at trial. But it is a wholly different thing, and entirely improper, for counsel to argue facts to the jury that were not admitted.

. Although evidence of prior discriminatory acts by employers may be admissible in rare and narrow circumstances in discrimination cases to show an employer's state of mind with respect to the protected class, see Becker, 207 F.3d at 194 n. 8, it should be obvious to any competent lawyer that the proper avenue for presenting such evidence is to present the best case for its admission to the trial court during the case-in-chief. Here, the judge had excluded such evidence and it was not admitted. The tactic of counsel to add in argument what was not admitted in testimony is a fundamental error that cannot be countenanced. Counsel cannot properly argue facts to a jury that have not been admitted in evidence. To do so makes a mockery of all of the careful and time-tested procedures — the rules of civil procedure, the rules of evidence, and the rules of ethics, under which evidence is marshaled for trial, discovered by opposing parties, subjected to motions in limine and trial rulings, considered in formulating jury instructions, admitted or rejected by the trial court when offered, and finally, if admitted, considered by the trier of fact. All of this, with due process, goes out the window if counsel is permitted to add facts in closing argument that are not in the evidence.

. Although defense counsel in theory could have objected to the statements during closing argument, that is easier said than done at trial. For doing so at that stage would have created considerable risk of losing credibility with a jury listening intently to each side's close, especially if the trial court did not sustain the objection, and perhaps even if objection was sustained. And under Bird , the failure to object does not wholly jettison the ground for relief if the argument to which no objection was made is so improper as to challenge the integrity or fundamental fairness of the proceeding.

. Although Dr. Polissar testified that the plaintiff was a woman, he did not testify that the case involved a sex discrimination claim. Women can be plaintiffs in any type of case, including all of the various types of discrimination cases; the fact that a woman had previously sued Tidymaris does not, by itself, raise an inference that a sex discrimination claim was involved.

. Although Hemmings also initially stated that the company had lost a discrimination lawsuit or lawsuits, that testimony was objected to on hearsay grounds, and the objection was sustained.

In context, Hemmings' allusion to the fact that the female plaintiffs had sued Tidymaris for discrimination does permit an inference that the plaintiffs in the prior case or cases sued for sex discrimination. However, unlike counsel’s statement during closing argument, Hemmings’ testimony did not imply that the practices or policies challenged by the prior plaintiffs were identical to those challenged by the current plaintiffs.

. Doubtless the majority shies away from requiring a new trial consuming more than a week of judicial and litigant resources, without including preparation time, over a mistake in argument of a few seconds in closing. But the length of the improper argument is not the measure of its power to work injustice. It would be better to try the case again to ensure that the parties' dispute is resolved by fair procedure.

.This is so because the temptation to view the charged act as consistent with a defendant’s prior conduct becomes stronger if the charged act is very similar to the prior conduct.