Closing arguments are meant to help jurors understand the evidence and the way in which each side sees the case. M Civ JI 2.02.
“After the close of all the evidence, the parties may make closing arguments. The plaintiff . . . is entitled to make the first closing argument. If the defendant makes an argument, the plaintiff . . . may offer a rebuttal limited to the issues raised in the defendant’s argument. The court may impose reasonable time limits on the closing arguments.” MCR 2.513(L). See also MCR 2.507(F). However, the court “must give adequate time for argument, taking into consideration the complexity of the action.” Warden v Fenton Lanes, Inc, 197 Mich App 618, 625 (1992).
Either side may waive its right to present a closing argument. MCR 2.513(L). See also MCR 2.507(E). However, it is reversible error to deny a party’s right to closing argument. United Coin Meter Co v Lasala, 98 Mich App 238, 242 (1980).
“[A] request for curative instructions or an objection to the instructions is necessary to preserve the issue of the propriety of a closing argument.” Danaher v Partridge Creek Country Club, 116 Mich App 305, 317 (1982).
Counsel may only make arguments regarding facts and issues that have been elicited during the trial. Grewette v Great Lakes Transit, 49 Mich App 235, 237 (1973) (finding that deposition testimony that was not part of the record was not a proper subject of summation). Reversal may be required if a curing instruction is not sufficient to counter “either a deliberate and continuous course of conduct or an outrageous statement.” Id.
In making a closing argument, “counsel is permitted to draw reasonable inferences from the testimony.”In re Miller, 182 Mich App 70, 77 (1990) (an attorney’s use of the phrases “I believe” and “I have to conclude,” was permissible where the attorney “did not depart from stating what the evidence showed and what inferences could be drawn from the evidence”). “[The] [d]efendant ha[s] the right to ask the jury to believe his case, however improbable it may . . . [seem].” Hunt v Freeman, 217 Mich App 92, 99 (1996). Attorneys are permitted some freedom in their final argument, and they may reach different inferences and conclusions than a disinterested and unbiased judge. Kujawski v Boyne Mtn Lodge, Inc, 379 Mich 381, 385-386 (1967).
B.Remarks Designed to Invite Sympathy From Jury
It is reversible error for the defense to ask the jurors to consider the effect that their judgment will have on them personally. Duke v American Olean Tile Co, 155 Mich App 555, 564 (1986) (plaintiff’s counsel suggested that family members of the jurors may be injured by the defendant’s tile product in the future if the jury returned a verdict favorable to defendant). However, an isolated invitation to the jury to put itself in the defendant’s shoes “without a studied purpose to prejudice the jury” is harmless error. Brummitt v Chaney, 18 Mich App 59, 65-66 (1969). It is also impermissible for an attorney to use “rhetoric that attempts to inflame passion and prejudice and that intentionally subverts the jury’s fact-finding role.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 774-775 (2004).
It is improper to argue that “‘[n]obody would go through this pain and suffering for any sum of money,’” Danaher v Partridge Creek Country Club, 116 Mich App 305, 317 (1982) (citation omitted), or to suggest how much it would cost to hire someone to suffer the same injuries, Crenshaw v Goza, 43 Mich App 437, 446 (1972).
C.Remarks Involving Witness Testimony
Repeated personal attacks on the integrity of witnesses by counsel in argument or in examination constitute reversible error. Kern v St Luke’s Hosp Ass’n of Saginaw, 404 Mich 339, 352-354 (1978). In Kern, the defense counsel repeatedly attacked the plaintiffs’ expert witnesses’ integrity during cross-examination and closing arguments by suggesting (with no evidentiary support) that the witnesses had colluded with the plaintiff’s attorney to provide false testimony. Id. at 346. The Court ultimately concluded that these arguments warranted a new trial because the Court “perceive[d] a studied purpose to prejudice the jury and divert the jurors’ attention from the merits of the case.” Id. at 354.
D.Remarks Involving Opposing Counsel
It is error to call into question the honesty and integrity of opposing counsel. Powell v St John Hosp, 241 Mich App 64, 81-82 (2000). See also People v Unger, 278 Mich App 210, 238 (2008), where the Court found that “[t]he prosecution . . . clearly exceeded the bounds of proper argument when it suggested (1) that defense counsel had attempted to ‘confuse the issue[s]’ and ‘fool the jury’ by way of ‘tortured questioning,’ ‘deliberately loaded questions,’ and ‘a deliberate attempt to mislead,’ (2) that defense counsel had attempted to ‘confuse’ and ‘mislead’ the jury by using ‘red herrings’ and ‘smoke and mirrors,’ and (3) that defense counsel had attempted ‘to deter [the jury] from seeing what the real issues [were] in this case.’” (Second and third alterations in original.) However, because “the trial court instructed the jury that ‘[t]he attorneys’ statements and arguments are not evidence’ and that ‘[y]ou should only accept things the attorneys say that are supported by the evidence or by your own common sense and general knowledge,’” and because a timely objection and curative instruction may have mitigated the prejudicial effect of the prosecutor’s statements, there was no error requiring reversal. Id. (alterations in original).