In an interesting decision from the federal 1st Circuit Court of Appeals, issued October 5th, 2011, the jury, under Massachussetts law, awarded the plaintiff compensation for an injury caused by a defective table saw. The defendant manufacturer appealed, arguing in part, that plaintiff's attorney made "impermissible statements" to the jury which "prejudiced its case to the extent that a new trial is necessary."
Specifically, the manufacturer argued that plaintiff's counsel "improperly urged the jury to 'send a message" to [the manufacturer's] management." The trial judge did in fact advise "against 'introducing purely emotional elements' to the jury's deliberations." The trial court's opinion is here.
The 1st Circuit expressed its "concern" over plaintiff's counsel's suggestion during opening statements that the jury "send a message" to management by imposing liability on teh manufacturer. In a previous case, the court held that plaintiff's call to "send a message" was an "improper request for punitive damages." Smith v. Kmart Corp., 177 F.3d 19, 26-27 (1st Cir. 1999).
In this latest case, however, the court noted that plaintiff's counsel "asserted that he would refrain from using" the "send a message" appeal during closing argument to the jury. The appellate court found this to be sufficient protection against prejudice.
The trial court had stated that it would not further restrict any statements by the parties, but "warned both parties against 'introducing purely emotional elements into jury deliberations.'" The manufacturer argued on appeal that plaintiff's counsel nevertheless "implicitly" asked the jury to "send a message" during closing argument, but to no avail.
Is asking the jury to "send a message" a "purely emotional element" which is thereby improper? Is there a difference between a "purely emotional element" and a "partly emotional element"? The facts are crucial, of course, but the best trial lawyers wrap their best facts in emotional boxes, with ribbons! {update: October 11, 2011 - and so do defense attorneys!}
Moreover, shouldn't jury judgments have a corrective impact which transcends the parties in the case? Shouldn't the law generate incentives for everyone to do right, to manufacture safer products?
