Caudle v. District of Columbia, 2013 U.S. App. LEXIS 3213 (D.C. Cir. Feb. 15, 2013):

Appellees Frazier Caudle, Nikeith Goins, William James, Sholanda Miller and Donald Smalls (collectively, appellees) sued the District of Columbia (District), their employer, for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII). During closing argument, their counsel made four inappropriate statements--the last three of which occurred after the district court had sustained objections to the earlier iterations. The jury found in favor of the appellees and awarded compensatory damages to each except Smalls. The district court subsequently denied the District's post-trial motions, including those seeking a new trial and/or remittitur. The District argues on appeal, inter alia, that it is entitled to a new trial because of the improper closing argument. We agree and reverse the district court's judgment, remanding for further proceedings consistent with this opinion.***

At the end of a three-week trial and during closing arguments, the appellees' counsel made four statements to which the District objected and now challenges on appeal. First, she stated:

You heard [the] plaintiffs explain that they felt humiliated, berated, and isolated at the [June 20] 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 . . . .

JA 589 (emphases added). The District objected and the trial court sustained the objection but denied its request for a curative instruction.

Almost immediately after the court sustained the first objection, the appellees' counsel stated: "Ask yourself this: Wouldn't you think twice about complaining about workplace discrimination . . . ." JA 590 (emphasis added). Once again, the court sustained the District's objection but did not give a curative instruction.

The appellees' counsel then argued:

Now, in the end it is your job to determine how to make [the] plaintiffs whole for what they have had to endure. As you make those decisions, we ask yourselves [sic] 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 . . . .

JA 591 (emphases added). After the District objected, the district court sustained the objection and instructed the jury: "Ladies and gentlemen of the jury, this is what is called a golden rule argument, asking you to place yourself in the position of the plaintiffs. You should not consider such an argument." JA 591-92.

Finally--shortly after the district court sustained the last objection--the appellees' counsel concluded:

By protecting plaintiffs' right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.

***

The jury returned verdicts for the appellees and awarded a total of $900,000 in compensatory damages; $250,000 to Smalls, $250,000 to James, $200,000 to Caudle, $200,000 to Goins and $0 to Miller. The court then awarded back pay and prejudgment interest in the amount of $14,399 to Smalls, $51,666 to James, $36,454 to Caudle, $36,785 to Goins and $0 to Miller. The court also enjoined the District from engaging in further retaliation and awarded the appellees their litigation costs. ***

A new trial may be granted based on improper jury argument. See, e.g., United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 897-98 (D.C. Cir. 2010) (per curiam) ("[A]rguments to the jury about a defendant's wealth are grounds for new trial."); see also Wash. Annapolis Hotel Co. v. Riddle, 171 F.2d 732, 740 (D.C. Cir. 1948)). The jury may not return a verdict based on personal interest, bias or prejudice and an argument asking it to do so is improper. See, e.g., Miller, 608 F.3d at 897-98 (references to defendant's wealth improper because "[t]he only way the information could have affected the jury was to prejudice it"); Riddle, 171 F.2d at 740 (jury argument "that justice should be administered unequally as between the rich and the poor" warranted mistrial).

The appellees' counsel made four inappropriate statements during her closing argument. The first three are "golden rule" arguments. A golden rule argument--which asks "jurors to place themselves in the position of a party," see, e.g., Ins. Co. of N. Am. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989)— is "universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence." Granfield v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010) (quotation marks omitted); see also Arnold v. E. Air Lines, Inc., 681 F.2d 186, 199 (4th Cir. 1982) ("The Golden Rule and sympathy appeals are . . . obviously improper arguments . . . . Having no legal relevance to any of the real issues, they were per se objectionable . . . ."); Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714 (5th Cir. 1967) ("The real danger is that the sympathy and the feelings of the jury will be encouraged and aroused so that the jury will decide the case and award damages out of relation to actual fault and actual damage."). For example, it is impermissible (1) to ask jurors how much the loss of the use of their legs would mean to them, Leathers v. Gen. Motors Corp., 546 F.2d 1083, 1085-86 (4th Cir. 1976); (2) to tell jurors "do unto others as you would have them do unto you," Klotz v. Sears, Roebuck & Co., 267 F.2d 53, 54 (7th Cir. 1959); or (3) to tell jurors, in a reverse golden rule argument, "I don't want to ask you to place yourself in [the plaintiff's] position," Loose v. Offshore Navigation, Inc., 670 F.2d 493, 496 (5th Cir. 1982).

While all circuits that have considered the issue have held a golden rule argument improper if made with respect to damages, there appears to be, as the district court noted, a circuit split regarding whether such argument is improper if made with respect to liability. At least four circuits have found such a golden rule argument permissible. See, e.g., McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 n.3 (11th Cir. 1996); Johnson v. Celotex Corp., 899 F.2d 1281, 1289 (2d Cir. 1990); Shultz v. Rice, 809 F.2d 643, 651-52 (10th Cir. 1986); Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976). On the other hand, the Third Circuit has rejected the liability-damages distinction. Edwards v. City of Phila., 860 F.2d 568, 574 n.6 (3d Cir. 1988) ("We see no rational basis for a rule that proscribes the 'Golden Rule' argument when a plaintiff argues damages, but permits it when the defendant argues liability . . . . [because the] same concerns are present in both situations--the creation of undue sympathy and emotion" (quotation marks and brackets omitted)); see also Ins. Co. of N. Am., Inc., 870 F.2d at 154 (suggesting but not holding that defense counsel's opening statement--"asking the jurors to consider whether any of them would like to be accused of fraud based upon the evidence which they were about to hear"--was improper); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) ("[The Plaintiff] urges that the Golden Rule argument is not objectionable when it refers only to the assessment of credibility. There is no reason for such a distinction because the jury's departure from its neutral role is equally inappropriate regardless of the issue at stake.").

We join our sister circuits and hold that a golden rule argument is improper and may thus serve as the basis for a new trial.

Footnote 7. We explain infra that the district court may grant a new trial only if the golden rule argument affects substantial rights, see Fed. R. Civ. P. 61.

Further, we do not recognize a per se distinction between a golden rule argument relating to damages and the same argument regarding liability. Courts forbid golden rule arguments to prevent the jury from deciding a case based on inappropriate considerations such as emotion. See, e.g., Stokes v. Delcambre, 710 F.2d 1120, 1128 (5th Cir. 1983) ("The rule's purpose is to reduce the risk of a jury decision based on emotion rather than trial evidence."). It is no more appropriate for a jury to decide a defendant's liability vel non based on an improper consideration than to use the same consideration to determine damages. Accordingly, we agree with the Third Circuit that a golden rule argument made with respect to liability as well as damages is impermissible.

We conclude that the appellees' counsel's first three above-quoted statements are golden rule arguments. The third statement, addressed to damages, is plainly improper; she asked the jury to "put yourselves in the plaintiffs' shoes" in "determin[ing] how to make plaintiffs whole." JA 591. This is a quintessential invocation of the golden rule and the district court was correct to sustain the objection and instruct the jury to disregard it. While the propriety of the first two statements is a closer question, we nonetheless conclude that they also constitute golden rule arguments addressing liability. ***The appellees argue that the statements are permissible because they explain the legal standard for retaliation under Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). But the Burlington Northern standard--which forbids "employer actions that would have been materially adverse to a reasonable employee"--is an objective standard. 548 U.S. at 57 (emphasis added). Because it is objective, "[i]t avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." Id. at 68-69. As the district court necessarily found in sustaining the objections, however, the appellees' counsel's statements did not describe an objective standard. Rather, they asked the jurors to decide how each of them--not a reasonable person--would feel if he were in the appellees' situation.

The fourth statement, while not a golden rule argument, is also inappropriate. ***

This is a so-called "send a message" argument that, alone, might not be grounds for reversal, Carter v. District of Columbia, 795 F.2d 116, 138-39 (D.C. Cir. 1986). Here, given the fact that the appellees' counsel made this argument after the district court had sustained three objections to golden rule arguments--her send a message argument was also inappropriate because, like the golden rule arguments, it diverted the jury's attention from its duty to decide the case based on the facts and the law instead of emotion, personal interest or bias.

Counsel has an obligation--as Justice Holmes put it--to "play the game according to the rules."

Footnote 10. I said to [Justice Holmes]: "Well, sir, goodbye. Do justice!" He turned quite sharply and . . . . replied: "That is not my job. My job is to play the game according to the rules."

Judge Learned Hand

Michael Herz, "Do Justice!": Variations Of A Thrice-told Tale, 82 Va. L. Rev. 111, 111 (1996) (quoting Learned Hand, A Personal Confession, in The Spirit of Liberty 302, 306-07 (Irving Dilliard ed., 3d ed. 1960)).

Here, the appellees' counsel did not. She made four inappropriate arguments; three after the district court had sustained objections. As the district court's efforts to cure the resulting prejudice were, in our view, insufficient, we reverse and remand for further proceedings consistent with this opinion.