new trial motion claiming plain error is within trial court’s discretion, as it is in the best position to assess prejudice
How later courts described this case
- new trial motion claiming plain error is within trial court’s discretion, as it is in the best position to assess prejudice
- referring to medical expert witnesses as “ ‘high-priced’ ” experts and “ ‘hired-gun doctors’ ” was not improper
- "hired gun" type of argument not improper
Written by the judges who cited it.
The opinion
JUSTICE RARICK, dissenting:
Because I believe the closing argument of plaintiff’s counsel overstepped the bounds of propriety and the cumulative effect of counsel’s prejudicial comments deprived the defendants of a fair trial, I must dissent. The purpose of closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. (Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 661 , 315 N.E.2d 63, 67 .) Here, neither the facts nor reasonable inferences drawn from those facts were presented fairly.
While it is not improper for counsel to question either the credibility or judgment of a witness upon any legitimate ground, counsel “has no right to indulge in violent or inflammatory language for the purpose of arousing the prejudice and passions of the jury nor to insult or abuse a witness without cause.” (Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53 , 382 N.E.2d 409, 411 .) “The constitutional right of trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict ***.” (Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 712 , 346 N.E.2d 448, 449 .) A trial should be a dignified procedure, not something which demeans the entire judicial process. Counsel’s comments here were far more than “colorful”; in many instances, they served only to arouse the prejudice and passions of the jury. Moreover, we are not confronted with just a few isolated remarks; the entire tenor of the argument clearly was designed to arouse the emotions of the jury. I again wish to reiterate, as I did in my dissent in Lewis v. Cotton Belt Route — St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94 , 576 N.E.2d 918 , that while zealous advocacy should be encouraged, even zealous advocacy must fall within reasonable bounds of propriety. Plaintiff’s counsel here overstepped that boundary.
I have no problem with counsel arguing that the opposing side’s expert witness is distorting the truth for personal gain; my concern is the language used to express that belief. Contrary to the views of the majority, it is not a matter of “coddling” the expert witness; it is a matter of dignity and respect for the entire judicial process. Winning at any cost simply should not be tolerated.
Additionally, I wish to express my concern over the potential for abuse we possibly are creating by allowing the use of nonparty medical records. While I ultimately concur with the majority’s disposition of this issue, I strongly urge trial courts to proceed with great caution in future cases if faced with similar circumstances.