Commercial Litigation and Arbitration

Improper Golden Rule Arguments — Circuit Split as to Whether Golden Rule Arguments Are Always Improper or Only If Directed to Damages

Caudle v. District of Columbia, 804 F. Supp. 2d 32 (D.D.C. 2011):

In June and July of 2010, a three-week jury trial was held in this case. The jury returned a verdict for plaintiffs Frazier Caudle, Nikeith Goins, William James, Sholanda Miller, and Donald Smalls, concluding that the District of Columbia Metropolitan Police Department ("MPD") had retaliated against plaintiffs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The District now moves for judgment as a matter of law, a new trial, and remittitur of the jury's award of damages to four of the five plaintiffs [#297]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be denied. ***

2. "Golden Rule" Violations

The District next asserts that plaintiffs' counsel made three impermissible "golden rule" arguments — that is, arguments that asked the jurors to imagine themselves in plaintiffs' shoes — and that the Court's inadequate response to these arguments biased the jurors, causing them to "lash out at the District." Def.'s Mem. at 34-35. Plaintiffs rejoin that no golden rule violations occurred, but that, even if they did, they were rendered harmless by the Court's sustaining the District's objections and issuing curative jury instructions. Pls.' Opp'n at 44. Plaintiffs are correct.

During her closing argument, plaintiffs' counsel made three comments that the District contends were improper golden rule arguments. Plaintiffs vigorously dispute the District's characterization. They argue that two of counsel's statements were actually intended to aid the jurors in applying the material-adversity standard articulated in Burlington Northern, which requires the factfinder to ask whether the defendant's conduct would dissuade "a reasonable person in the plaintiff's position" from pursuing a charge of discrimination. See Burlington N., 548 U.S. at 71 (emphasis added).

Footnote 18 Counsel's first two comments, both of which were truncated by objections, went as follows:

PLAINTIFFS' COUNSEL: You heard plaintiffs explain that they felt humiliated, berated, and isolated at the meeting listening to their supervisors and peers comment on their discrimination complaint. Now, ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office --


PLAINTIFFS' COUNSEL: Officer Chaplin likewise testified he was worried about the reapplication because he wanted to stay in the FMU. Ask yourself this: Wouldn't you think twice about complaining about workplace discrimination –

Trial Tr. 11, 12, July 6, 2010.

And, plaintiffs contend, the third comment was intended only to communicate the gravity of plaintiffs' injuries, not to appeal to the jury's emotions.

Footnote 19 Counsel's third comment, also cut short by an objection, was this:

PLAINTIFFS' COUNSEL: Now, in the end it is your job to determine how to make plaintiffs whole for what they have had to endure. As you make those decisions, we ask yourselves to put yourselves in the plaintiffs' shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded –

Trial Tr. 50, July 6, 2010.

These arguments are not without force; regardless, the Court need not decide whether counsel's comments were actually golden rule arguments because, even if they were, no prejudice could possibly have resulted. See Ins. Co. of N. Am. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989) ("The law is clear that although it is improper to ask jurors to place themselves in the position of a party, such a 'golden rule' argument does not constitute reversible error if no prejudice arise[s] from counsel's comment.").

Footnote 20 There is a circuit split (unimportant here because of the lack of prejudice) on whether golden rule arguments are impermissible at all times, or only as to the issue of damages. Compare, e.g., McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 n.3 (11th Cir. 1996), with Edwards v. City of Philadelphia, 860 F.2d 568, 574 n.6 (3d Cir. 1988).

In all three instances, the District objected before plaintiffs' counsel finished the offending sentence, and in all three instances the Court sustained the District's objection. Trial Tr. 11, 12, 50, July 6, 2010. After the third comment, the Court noted that plaintiffs' counsel had made an improper golden rule argument and instructed the jury to disregard it. Trial Tr. 50-51, July 6, 2010. Finally, in the general jury instructions, the Court directed the jurors to "decide the facts of this case only from a fair evaluation of all of the evidence without prejudice, sympathy, fear, favor, or public opinion." Trial Tr. 6, July 7, 2010. Because the Court's specific instruction following the third comment, in combination with these general instructions, sufficed to cure any minimal prejudice that might have arisen from counsel's comments, those comments do not warrant a new trial. See United States v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989) ( finding that, although the prosecutor's g olden rule comment was improper, it was not so prejudicial as to deprive the defendant of a fair trial because the defense immediately objected to the comment, the court sustained the objection, and the prosecutor rephrased the argument); Edwards v. City of Philadelphia, 860 F.2d 568, 574 (3d Cir. 1988) ( "[A] clear and complete jury instruction on the elements of the claim asserted and on the allocation of the burdens of proof . . . is sufficient to cure harm caused by a 'Golden Rule' argument." ); Loose v. Offshore Navigation, Inc., 670 F.2d 493, 497 (5th Cir. 1982) ( noting that after a golden rule violation the "trial judge may, by appropriate instruction, salve the suit").

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