The Appellate Division recently vacated a $300,000 jury award in a personal injury lawsuit due to plaintiff's counsel's improper use of a PowerPoint presentation during his closing argument. In this matter, Anthony Romano filed a lawsuit against Michael Stubbs in connection with an altercation which occurred in the Bergen County Courthouse on February 23, 2006.
On that date, Stubbs was in court for a hearing in connection with a domestic violence complaint filed by his wife and a determination as to whether a temporary restraining order should be made permanent. While in court, an officer approached Stubbs and told him that a warrant had been issued for his arrest due to his alleged violation earlier in the day of the temporary restraining order. Romano, who was an officer in the courtroom, assisted in arresting Romano after he resisted arrest. During the altercation, Stubbs fell on top of Romano forcing Stubb's elbow into the ground. Stubbs ultimately pled guilty to a petty disorderly persons offense for this altercation.
Romano alleged that as a result of this incident he sustained an injury to the ulnar nerve in his elbow which required surgery. Additionally, Romano claimed that he injured his neck warranting a spinal fusion. Romano in turn filed a negligence lawsuit against Stubbs.
At issue in this case was plaintiff's counsel's use of a PowerPoint presentation during his closing argument. During the recess between defense counsel's closing argument and the start of plaintiff's counsel's closing argument, it was disclosed for the first time that plaintiff intended to use a PowerPoint presentation during closing. Defense counsel objected to plaintiff's counsel utilizing the PowerPoint presentation at that point. The trial judge permitted the use of the PowerPoint presentation finding that plaintiff's counsel would not be projecting anything he would not say in his argument.
During his closing argument, plaintiff's counsel utilized the PowerPoint presentation to support his argument that Stubbs decision to proceed to trial reflected a bad character and his refusal to accept responsibility for the happening of the incident. Additionally, plaintiff's counsel argued that Stubbs and his attorney were acting in concert to blame Romano. Also, during the presentation, plaintiff's counsel projected words indicating that Stubbs was a criminal, had a propensity for violence and that the jury needed to "send a message." Ultimately, the jury returned a verdict of $300,000 to compensate Romano for his injuries.
In reviewing this matter, the Appellate Division noted that generally closing arguments based on the evidence are permissible, but arguments that "shift the jury's focus from a fair evaluation of the evidence to pursue instead a course designed to inflame a jury, by appealing repeatedly to inappropriate and irrelevant considerations are not." The Court recognized that while "counsel has broad latitude to passionately advocate their clients' cases in summation, there are some clear boundaries."
Taken as a whole, the Court found that plaintiff's counsel had made improper arguments through the use of his PowerPoint presentation. The Court found that arguing and projecting words that: (1) the jury needed to send a message; (2) Stubbs was a violent person; (3) Stubbs was a criminal; (4) Stubbs decision to go to trial was evidence of a bad character; and (5) Stubbs and his counsel were "working" to blame Romano, constituted improper arguments. As such, the Court found that "the cumulative impact of multiple transgressions in plaintiff's closing argument leaves us with no confidence in the fairness of the damages awarded."
Accordingly, the damage award was vacated and the matter was sent back to the trial court for a retrial on damages.
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