Jury Trial — Improper Golden Rule Invocation — Fact vs. Legal Testimony by Lawyer — References to Rulings in Opening — Court Not Bound to Interrupt Argument Sua Sponte — Argument Must Be Quite Extreme to Warrant New Trial

Queen v. Schultz, 2015 U.S. Dist. LEXIS 102169 (D.D.C. Aug. 5, 2015):

The parties in this lawsuit first met in a hallway at an NBC television studio in January 2008, when the plaintiff, Michael Queen, approached Ed Schultz, the defendant. See May 13, 2015 Tr. at 13, ECF No. 169 (Testimony of Michael Queen). From all outward appearances, the plaintiff seemed to be a "nice guy," yet his demeanor was "aggressive" and his clothing "Army fatigues." See May 15, 2015 AM Tr. at 65, ECF No. 183 (Testimony of Ed Schultz). The plaintiff was a fan of a popular nationally [*2]  syndicated radio program, "The Ed Schultz Radio Show," and seized the opportunity to speak with its host. After exchanging greetings, the plaintiff and defendant had a brief, five to ten minute conversation, in which the plaintiff praised the defendant's radio show and told the defendant "you've got to be on TV." Id. at 65-66 (Testimony of Ed Schultz); see also May 13, 2015 Tr. at 13, 108-11 (Testimony of Michael Queen). The defendant responded, "I agree," id., since he had been trying seriously for nearly two years to host a national television program. See May 14, 2015 AM Tr. at 94, ECF No. 188 (Testimony of Paul Woodhull). Without prompting, the plaintiff asked the defendant whether he was "working with anybody" in order to get a television show. May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz). "No. You're it," the defendant replied, as a good-natured response to one of his fans. Id. This seemingly innocent exchange clenched a multi-year business partnership between the plaintiff and the defendant--at least according to the plaintiff's trial testimony. See May 13, 2015 Tr. at 108-11 (Testimony of Michael Queen). After hearing five days of testimony, and needing only two hours of deliberation, [*3]  the jury reached an alternate conclusion: The parties never formed a business partnership. See Verdict Form, ECF No. 178.

The plaintiff now seeks to turn aside the jury verdict and present his claim anew for jury consideration. See Pl.'s Mot. & Mem. New Trial ("Pl.'s Mem."), ECF No. 192. For the reasons stated below, the plaintiff's request for yet another opportunity to convince a fact-finder of the merits of his claim is denied.

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B. Evidentiary Rulings

The plaintiff [*47]  also challenges several evidentiary rulings along with the defendant's opening and closing statements. Specifically, the plaintiff challenges: (1) the testimony as a defense witness of Jeffrey Landa; (2) defense counsel's alleged use of "Golden Rule" invocations during his opening statement; and (3) defense counsel's reference to "indentured servitude" during his closing statement. See Pl.'s Mem. at 1-2. Although evidentiary issues and improper argument can be a proper basis for an award of a new trial, as previously noted, "[t]he standard for granting a new trial is not whether minor evidentiary errors were made but rather whether there was a clear miscarriage of justice." Rice, 818 F. Supp. 2d at 60.

At the outset, the plaintiff's reply fails to address multiple arguments raised in the defendant's opposition. Specifically, the plaintiff's reply does not respond in any way to the defendant's arguments regarding two of the alleged errors proffered as a basis for new trial: (1) the testimony of Jeffrey Landa; and (2) the defendant's alleged use of a "Golden Rule" argument during opening. See Pl.'s Reply. As discussed above, by failing to respond to the defendant's opposing arguments in his reply, the plaintiff has [*48]  abandoned these arguments. See Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 152 n.2 (D.D.C. 2012); United States v. Locke, No. 09-CR-0259, 2012 U.S. Dist. LEXIS 49184, 2012 WL 1154084, at *1 (D.D.C. Apr. 9, 2012); cf. Ass'n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468, 471, 409 U.S. App. D.C. 67 (D.C. Cir. 2014). Even absent this concession, however, and as discussed below, the plaintiff cannot demonstrate a "clear miscarriage of justice" regarding any of the alleged grounds of error.

1. Testimony of Jeffrey Landa

Jeffrey Landa served as the defendant's personal attorney during the events giving rise to this litigation. During trial, he was called as a witness by both the plaintiff and the defendant. See May 12, 2015 AM Tr. at 114; May 14, 2015 AM Tr. at 202. In his testimony, Mr. Landa described his first-hand recollections of the negotiations between the parties and the timing and substance of the parties' discussions about a business arrangement. See May 12, 2015 AM Tr. at 118. During direct examination by the defense counsel, Mr. Landa was asked whether, as of March 2008, "when all of this takes place, suggestion of exclusive representation, suggestion of agency, suggestion of partnership, suggestion of corporation, was any agreement under any of those formats reached?" and Mr. Landa answered "No." May 15, 2015 AM Tr. at 11-12; see also May 14, 2015 PM Tr. at 29-30, ECF No. 189 ("Q: Was any agreement in place between Mr. Queen and Mr. Schultz as of [*49]  May 29th, 2008? A: No. Q: Partnership, contract, agency, anything? A: Nothing.").

In the present motion, the plaintiff repeats his arguments from trial that Mr. Landa "offer[ed] opinions to the jury on contract and partnership law" and that the plaintiff should have been permitted to "cross examine the witness [on] the basis of his opinions." Pl.'s Mem. at 13. Specifically, the plaintiff attempted to ask Mr. Landa if it were "possible for the defendant and the plaintiff to have a verbal partnership," and, following a sustained objection, proffered that he would ask Mr. Landa "if there could be a verbal partnership [and] if there could be an implied partnership." May 15, 2015 AM Tr. at 20-21. In support of his motion, the plaintiff notes that during his cross-examination by the plaintiff, Mr. Landa agreed that he "rendered numerous opinions to this jury that . . . no partnership agreement [existed]" and thereby opened the door to the questioning proposed by the plaintiff. Pl.'s Mem. at 12 (citing May 15, 2015 AM Tr. at 19).

The difficulty for the plaintiff is that Mr. Landa testified during direct examination as a fact witness regarding the facts in dispute: Did the parties enter into an agreement [*50]  during a specific month? See May 15, 2015 AM Tr. at 11-12. It is well-established that attorneys may testify as fact witnesses regarding their personal knowledge of the events in question. See, e.g., Tardiff v. Geico Indem. Co., 481 F. App'x 584, 587 (11th Cir. 2012) (affirming trial court's ruling regarding attorney testimony because attorney "testified as fact witness[] and confined [his] testimony to statements based on [his] own experiences and personal knowledge"); Ramey v. Dist. 141, Int'l Ass'n of Machinists & Aerospace Workers, 378 F.3d 269, 282 (2d Cir. 2004) (denying motion for new trial where trial court permitted attorney to "testify merely to facts of which he had personal knowledge"); United States v. Lawson, 991 F.2d 806 (10th Cir. 1993), as amended on denial of reh'g (June 2, 1993) (upholding trial court's permission of attorney to testify "as a fact witness, not an expert," while denying defendant's request for expert testimony from attorney). Mr. Landa did not testify regarding the state of the law or offer an opinion regarding whether the relationship between the plaintiff and the defendant met the legal requirements for a partnership. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213, 324 U.S. App. D.C. 241 (D.C. Cir. 1997) (holding that witness "may not testify as to whether the legal standard has been satisfied"). Rather, Mr. Landa testified regarding the existence of a fact: Based on his involvement in the negotiations, did the two parties reach an agreement [*51]  as of a certain date?

Although the plaintiff complains that he was unable to cross examine Mr. Landa regarding the basis for his testimony, the plaintiff's criticism reveals only a lack of legal imagination, not a limitation imposed by the Court. The plaintiff could have cross-examined Mr. Landa about the foundation for his testimony that the parties never entered into an agreement by inquiring, for example, whether Mr. Landa was privy to all of the communications between the two sides; whether the defendant consulted with Mr. Landa regarding all of his business transactions; and why Mr. Landa offered legal services to the defendant regarding a business agreement when Mr. Landa focused on employment law. Instead, the plaintiff sought to have Mr. Landa testify regarding the legal requirements for a partnership and to speculate about the possible application of that law to the parties' dealings. See May 15, 2015 AM Tr. at 20-21 ("[W]ould you agree that it is possible for the defendant and the plaintiff to have a verbal partnership?"). Such questioning impermissibly invades the province of the Court and the jury. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213, 324 U.S. App. D.C. 241 (D.C. Cir. 1997) ("Each courtroom comes equipped with a 'legal expert,' called a judge, and [*52]  it is his or her province alone to instruct the jury on the relevant legal standards."). The plaintiff's cross examination of Mr. Landa was appropriately limited and does not warrant a new trial.

2. Opening Statements

The plaintiff seeks a new trial stemming from the defense counsel's opening statements, which referred to prior rulings by this Court holding that the plaintiff was not the defendant's agent and that the plaintiff did not enter into a contract with the defendant. See Pl.'s Mem. at 16 (citing May 11, 2015 PM Tr. at 41). The plaintiff did not seek to exclude references to any prior court opinions in his motions in limine, nor did the plaintiff object either during or following the defendant's opening statement. Despite these omissions, the plaintiff now seeks a new trial claiming that the defendant made an impermissible "Golden Rule" argument during his opening statement. Id. The plaintiff's argument is without merit and evinces a profound misunderstanding of "Golden Rule" arguments.

A golden rule argument "asks 'jurors to place themselves in the position of a party.'" Caudle v. District of Columbia, 707 F.3d 354, 359, 404 U.S. App. D.C. 56 (D.C. Cir. 2013) (quoting Ins. Co. of N. Am. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989)). Courts forbid appeals to the "golden rule" in order "to prevent the jury from deciding a case [*53]  based on inappropriate considerations such as emotion." Id. at 360. "The jury may not return a verdict based on personal interest, bias or prejudice and an argument asking it to do so is improper." Id. at 359. A golden rule argument permits "'the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.'" Id. (quoting Granfield v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010)). Where a party makes repeated appeals to the juror's emotional sympathies, the error is heightened and may warrant a new trial even where the court has provided curative instructions. See Caudle, 707 F.3d at 361 (noting that a single argument "alone, might not be grounds for reversal" but that reversal was warranted when the party made "three objections to golden rule arguments" and a send a message argument).

In the present case, the defendant made no argument even resembling a "golden rule" argument, nor has the plaintiff proffered any explanation as to how the defendant's statements that the Court previously rejected the plaintiff's agency and contract theories "asks jurors to place themselves in the position of a party." Caudle, 707 F.3d at 359. To be sure, defense counsel's invocation of prior Court rulings in his opening statement might be thought to cloak the [*54]  opening statement with the Court's imprimatur. Nonetheless, the plaintiff failed to object on that ground at trial, and fails to object on that ground in his motion for a new trial. The plaintiff's request for a new trial on this ground is denied.

3. Summation

During summation, the defendant argued to the jury that the plaintiff's theory of the case amounted to a form of "indentured servitude," whereby a ten minute conversation in the hallway of a production studio led to an ongoing obligation to pay the plaintiff a portion of his subsequent earnings for any television show for the remainder of the defendant's professional life. See May 18, 2015 AM Tr. at 50, 70, ECF No. 184. As the plaintiff notes, he did not object on the record during or following the defendant's summation, and raises the issue for the first time in his motion for a new trial.21 See Pl.'s Reply at 5. As a result, and as discussed previously, to obtain a new trial "on grounds not called to the court's attention during the trial . . . the error [must be] so fundamental that gross injustice would result." See Wright & Miller, supra, § 2805, at 73; Wilson v. Porreco, No. 11-CV-1113, 2013 U.S. Dist. LEXIS 72286, 2013 WL 2250048, at *2 (D.D.C. May 22, 2013) (Wilkins, J.) (same). In bringing his motion, the plaintiff apparently faults the Court for not sua [*55]  sponte interrupting defense counsel in the midst of closing argument to condemn his argument and instruct the jury to disregard his statements. See Pl.'s Reply at 5. The D.C. Circuit has cautioned, however, that "a trial judge should not interrupt every argument which he thinks undesirable." Harris v. United States, 402 F.2d 656, 657 n.1, 131 U.S. App. D.C. 105 (D.C. Cir. 1968) (Burger, J.).

21   Although the plaintiff repeatedly invokes both the 13th Amendment and "involuntary servitude" in his motion for a new trial, see Pl.'s Reply at 5, the defendant referred to neither during his closing argument.

Closing argument affords counsel the opportunity to present the jury with their theory of the case, to review evidence, and draw inferences. United States v. Moore, 651 F.3d 30, 52, 397 U.S. App. D.C. 148 (D.C. Cir. 2011) aff'd in part sub nom. Smith v. United States, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013) ("The sole purpose of closing argument is to assist the jury in analyzing the evidence . . . ."). As discussed, during argument, counsel may not improperly ask the jury to return a verdict on the basis of "personal interest, bias or prejudice." See Caudle, 707 F.3d at 359-60.

The plaintiff argues that not only did defense counsel cross a line but defendant's closing argument "denied Plaintiff substantial rights to a fair and impartial verdict." Pl.'s Reply at 6. The plaintiff doth protest too much. The defendant employed two brief passing references to [*56]  indentured servitude in order to highlight the absurdity of the plaintiff's theory that a single brief hallway introduction could result in an open-ended business partnership entitling the plaintiff to the proceeds of any future television show starring the defendant. The comments were not intended, nor did they have the effect of, improperly inflaming the passion of the jury. Instead, the defendant drew a provocative inference from the evidence and theories presented by the plaintiff to showcase the weakness in the plaintiff's claim.

Furthermore, even if the defendant's arguments were prejudicial, the plaintiff's contention that the statement was sufficiently extreme as to warrant a new trial finds little support in this Circuit's case law. Indeed, the D.C. Circuit refused to order a new criminal trial where the prosecutor's summation made comparisons between the defendant and Adolf Hitler. See United States v. North, 910 F.2d 843, 895, 285 U.S. App. D.C. 343 (D.C. Cir. 1990) opinion withdrawn and superseded in part on reh'g, 920 F.2d 940, 287 U.S. App. D.C. 146 (D.C. Cir. 1990) ("To suspect that the reference to Hitler swayed the jury on a close and critical issue would underestimate the common sense that we properly attribute to the jury."). In North, the Circuit noted that the defendant suffered little prejudice [*57]  because he was able to make ample use of the hyperbolic statement during his own closing. Id. In the present case, the plaintiff specifically targeted defense counsel's reference to indentured servitude in order to make it a theme of his own closing, referring to indentured servitude three separate times. See May 18, 2015 AM Tr. at 71, 75, 78, 79. In fact, the plaintiff escalated the rhetoric, invoking not only indentured servitude but also the 13th Amendment, see id. at 71 ("[F]or the defendant, it means they've repealed the 13th Amendment . . . ."), and slavery, see id. at 71 ("[W]e're back to slavery.").

The defense counsel's reference to indentured servitude was a reasonable--albeit provocative--inference drawn from the plaintiff's own theory of the case and does not warrant a new trial.

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