In a case testing the limits of improper jury argument, the Texas Supreme Court has reversed a multi-million jury verdict against a trucking company because plaintiff’s counsel made “an uninvited accusation of discriminatory animus” against defense counsel in closing argument.
Robert Alonzo and New Prime, Inc. v. Christine John and Christopher Lewis (No. 22-0521; May 10, 2024) arose from a rear-end collision involving a passenger vehicle and a tractor-trailer. Plaintiffs sued the driver-employee and employer for actual, noneconomic, and exemplary damages. The employer stipulated to course and scope. After a jury trial on damages, the jury awarded $12 million to Plaintiff John and $450,000 to Plaintiff Lewis for physical pain and anguish, but no exemplary damages. The trial court rendered judgment on the verdict. Defendants moved for new trial based on, among other things, plaintiff’s counsel’s unprovoked accusation of racial and gender bias in his jury argument. The motion was overruled by operation of law. Defendants appealed, but the Houston [14th] Court of Appeals affirmed.
In a per curiam opinion, SCOTX reversed and remanded for new trial. The problem arose first in voir dire, where plaintiff’s counsel responded to a venireman’s comment about gender disparity in wages by alluding to studies finding that men receive higher jury awards than women the same injury. He also asked the panel “does it matter if my client is African-American?” but dropped the subject thereafter. The Court appeared willing to have let it go at that, but, unfortunately for Plaintiffs, counsel “circled back to the topic during closing argument with a pointed attack on opposing counsel.” First, counsel tried to inoculate the jury against the impending defense request for a much lower damages award, by saying that all Defendants was a “discount . . . that’s a cost of doing business for them.” He demanded the full request of $12 million because “[p]artial justice is no justice. . . . [T]hey want a discount, and I don’t think you have to discount a human being’s life.” That, too, might have been acceptable, but after defense counsel suggested an award of $250,000, “plaintiff’s counsel retorted in rebuttal: We don’t want the 4 or 5 million. And now we certainly don’t want this $250,000. . . . We don’t want their 4 or 5 million. Because it’s a woman, she should get less money? Because she’s African-American, she should get less money? No. We’re going to fight because we believe in the jury system.”
That was the bridge too far for SCOTX. Defendants objected and moved for a mistrial, which the trial court overruled. Although Defendants did not request a retraction or curative instruction, SCOTX ruled that they didn’t have to “because the argument ‘struck at the heart of the jury trial system, was designed to turn the jury against opposing counsel and his clients, and was incurable” (citation omitted). More fundamentally, the Court stated that “[a]n appeal to racial prejudice is a paradigmatic example of incurable jury argument” because it “strikes at the ‘fairness and equality of justice’ by inducing the jury to consider a party’s race as a factor in reaching its decision’” (citations motted). As to the attack on defense counsel, the Court opined that “[p]ointing the finger at opposing counsel results in palpable harm by undermining the basic premise that a trial provides impartial and equal justice” (citation omitted). The Court rejected the court of appeals’ position “that plaintiff’s counsel merely asked the jury to reject implicit bias in their own deliberations” on the basis that counsel clearly alluded to his client’s race in pouring scorn on the defense’s suggestion of smaller damages. Perhaps if defense counsel or defendants themselves “indicate[d] any prejudice against [Plaintiff] based on her race and gender” or asked the jury to award less on that basis, it may have been a different story. But Plaintiff’s counsel put the bug in the jury’s ear during voir dire and came back to it in closing. Defendants thus met the burden of showing incurable harm from an improper jury argument because “the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict” (citations omitted).
This is an extreme scenario, to be sure, but the Court, even while ordering a new trial, reiterated the very high bar that a party must reach to cross the threshold of incurability. Here it looks like plaintiff’s counsel just couldn’t help himself, and it ended up potentially costing his client (as well as himself) a great deal of money. As we interpret the offending argument, it seems to insinuate that if the jury did not award the full amount of damages requested by Plaintiffs, then the jury might appear to have considered race and gender in its verdict. The court of appeals picked up on this interpretation but failed to consider counsel’s argument “in its proper setting,” that is, in response to what counsel undoubtedly viewed as a ridiculous low-ball offer designed to appeal to a jury already, as the Court observed, “sensitized” to alleged gender and race discrimination in jury verdicts.
