The Fifth Circuit held last week that the statement, “in a good week [defendant] may make $1,500,” made by defense counsel in opening statement warranted a new trial. The court concluded that the jury’s verdict reflected that it was controlled by sympathy. The presence of a jury member crying during openings also was twice pointed out.
The case is Robin Samuels v. William L. Torres (Sawaya, Orfinger, and Jacobus). In this personal injury case, liability was admitted and the dispute was over the amount of damages. Through medical and economist experts, the plaintiff sought over $600,000. The only medical expert referenced in the opinion reportedly stated that the plaintiff “definitely needed [future] cervical spine surgery.”
In closing, defense counsel argued that the jury should neither award significant pain and suffering nor award money for future surgery. In the end, the jury awarded past medicals, $5,000 pain and suffering, and $34,000 for future neck follow-up. The opinion states, “there is absolutely no evidentiary support for such an award.”
Interjection of a party’s wealth or poverty is considered both irrelevant and highly prejudicial. Here, the court noted that counsel revealed his client’s meager income, a jury member began to cry, and the jury returned a verdict which was not consistent with the evidence (thus suggesting they were swayed by sympathy).
What is unclear is whether counsel’s entire statement in opening was improper. In the opinion, the “in a good week he makes $1,500″ is italicized. So we know that such a blunt statement is improper. However, a prior portion of counsel’s comment involves the lawyer “introducing” his client to the jury by explaining he is a truck driver “who does work for whoever he can get work from” and that he is responsible for costs like gas and maintenance. The opinion does not address whether an introduction — which seems appropriate and commonplace in opening statements — may actually reveal signs of someone’s wealth (or lack thereof) without being prejudicial.