Harlow v. Chin

Lynch, J.

(dissenting, with whom Nolan, J., joins). Apart from the dissenting opinion of Justice O’Connor, with which I agree, I would remand the case to the Superior Court for a new trial because of the improper argument of the plaintiff’s counsel. At the outset, I point out that the plaintiff’s improper remarks were not limited to the issue of damages. In addition to alluding to numerous significant monetary amounts without any basis in the record, the plaintiff’s counsel made the following remarks: “[M]uch of the evidence that [defendants’ counsel] said was in this case is not, and I think he knows it.” He then accused defendants ’ counsel of intentionally making arguments to “stink the case up” because the defendants “don’t have a defense.” He went on to characterize the defendants’ arguments as “ridiculous,” “incredible,” and “a bunch of baloney.” He accused the defendants of “filling in memories that didn’t exist” and “winging it” with respect to their defense. He announced that Chin’s predictable prevarication required a trial strategy of laying “a few traps” for him and “swinging them.”

The plaintiff’s counsel then portrayed himself as the plaintiff’s hardworking advocate who had been “working on this case for four years” and “put a lot of work into this case.” He also asserted that he had refrained from introducing evidence that might embarrass the plaintiff; he made representations to the contents of a trial transcript, not in evidence, and asserted that defense counsel had misrepresented the testimony contained therein; he described a trust fund not in evidence as the repository of any damages to be awarded to his client; he made assertions as to the plaintiff’s potential marriageability; and he suggested that a finding of liability would vindicate the rights of *718 the residents of Chelsea to receive the same medical care as the residents of Boston. 1

During the course of the argument the defendants made two objections and received rather innocuous responses from the judge. That is, the judge gave the jury an instruction but did not warn or admonish counsel or otherwise direct that the improper remarks should cease. At the close of the argument defense counsel registered an additional twenty-six specific objections. During the course of these objections, the judge’s comments were more or less favorable or, again, innocuous. The defendants’ counsel requested curative action. The judge responded: “I think that the instructions the Court has already given and will also give to the jury about the nature and status of closing arguments and summations will be sufficient to take care of the problem, I hope. I’ll say no more than that.” This falls far short of “strong corrective action” that the court concedes was required in the face of egregious and improper argument of the plaintiff’s counsel. Ante at 703. Defense counsel then asked that the jury be told that any first-person comments by opposing counsel not only should be disregarded, but also were improper. The judge responded by saying that he would tell the jury that closing arguments are not evidence. Defense counsel then pressed the judge further for an instruction that the argument was improper. That request was again refused. Finally defense counsel requested that opposing counsel be admonished for making personal, first-person opinions and observations and for reading from a transcript, not in evidence, and saying that there was nothing in it. The ensuing discussion and the abrupt adjournment for lunch fairly demonstrate the judge’s refusal to grant the request to admonish the plaintiff’s counsel and to inform the jury that the argument was improper. While the judge informed defense counsel that — “even if you do object” — he would instruct the jury that first-person comments in argument are not “proper comment on the evidence,” he expressly and repeatedly refused either to instruct that it was improper for counsel so to argue, or to admonish the plaintiff’s counsel on the record and before the jury.

*719 After the judge’s charge to the jury there was an extended bench conference concerning specific requests for instruction filed by both parties. None of this discussion concerns the defendants’ objections to the plaintiff’s argument, and I submit that, in the face of the precharge conference during which the judge clearly indicated he was unwilling to admonish the plaintiff for improper argument, no additional request or objection was required. See Heina v. Broadway Fruit Mkt, Inc., 304 Mass. 608, 611 (1939).

I do not accept the court’s view that the judge adopted the suggestions of defense counsel regarding curative instructions. In the context of the colloquy discussed above, defense counsel’s comments cannot be regarded as assent or agreement. This is so for two reasons: First because the only “strong corrective action” open to the judge, admonishment of the plaintiff’s counsel in the presence of the jury, which was clearly requested by the defendants’ attorney, was just as clearly refused by the judge. Second, I suggest that sufficient precedent exists in cases where this court was dealing with the problem of improper argument to send the case back even where the judge’s instructions were accepted without objection. See Goldstein v. Gontarz, 364 Mass. 800, 811-812 (1974) (“[n]or do we think the defendants were required to apply for a corrective instruction after the judge had twice ruled flatly against them”), and cases cited. Here we have a situation where it is opposing counsel’s conduct which is the subject of the objection, conduct that occurs in front of the jury, in a context where it is difficult to object, and where limited opportunities for corrective action exist. I would submit in such situations, where the only feasible corrective action has been plainly and persistently requested and denied by the trial judge, there has been no acquiescence by defense counsel and no further objection is required.

Failure to object at the close of the charge is not fatal in these circumstances. London v. Bay State St. Ry., 231 Mass. 480, 486 (1919). In Leone v. Doran, 363 Mass. 1 (1973), the court commented on trial tactics intended to impress on the jury facts that were not warranted by the evidence. A new trial *720 was ordered where the argument was improper and where the judge declined to take rigorous and emphatic corrective action. Although the conduct of counsel in this case was not as egregious as counsel’s conduct in Leone , I think it is nevertheless true that counsel’s “tactics do a disservice to the court, the public, and the litigants.” Id. at 19 . In a similar situation, but under the much more restrictive rules of practice in use at the time, the court ruled that, once the trial judge had made a final ruling on an objection to an opponent’s final argument, that ended the incident as far as objecting counsel was concerned. “The circumstance that at the close of the charge no further exception was taken did not deprive the defendants of whatever value there was in the exception previously taken to a definitive ruling.” Doherty v. Levine, 278 Mass. 418, 420 (1932).

I therefore believe that, to require counsel in this case to do more is contrary to precedent and unfair, rewards egregious behavior, and does a disservice to the court, the public, and litigants.

One of the jurors was from Chelsea.