Appellate Insights

Sep 13, 2018 Alana H. Rotter
Attorneys Behaving Badly

Should you object to opposing counsel’s improper statements during closing argument?  This is a strategic decision based on multiple factors.  But remember one important consideration:  preserving the misconduct issue for appeal.

  • The Court of Appeal will not consider a claim of closing argument misconduct unless the record shows that the appellant preserved the claim in the trial court.
  • To preserve a misconduct claim in the trial court, (1) immediately object to the improper statement, and (2) move for a mistrial or seek a curative admonition.  Do not wait until a jury break or the end of the closing argument, unless the court has expressly authorized that procedure.
  • You may be able to salvage a failure to object by arguing misconduct for the first time in a new trial motion—the trial court has discretion to overlook the lack of a timely objection.  But relying on this option is perilous, since the trial court also has discretion to reject the argument as untimely.

►  The practical message:  If you want to have the option of challenging closing argument misconduct on appeal, make sure to object immediately to the misconduct and to request a mistrial or curative admonition.