Revisiting the Boundaries Between Proper and Improper Argument: 10 Years Later
By David K. Bissinger

Nearly a decade ago, this author wrote about how seasoned trial lawyers, arguing well within the rules, increasingly find themselves under attack from litigators unfamiliar with the line between proper and improper closing argument. See The Age of the Vanishing Jury Trial Leaves Some Litigators Underprepared for Closing Arguments, Texas Lawyer, Aug. 27, 2015 (https://www.law.com/texaslawyer/almID/1202735865013/).

That article observed how, at that time, courts seemed to disfavor after-the-fact objections to improper argument unless counsel objects at the time the argument was made. More recent state and federal decisions, however, indicate that courts in general, and federal courts in particular, have become more willing to conclude that so-called “incurable” arguments may require reversal of judgments—even if the appellant failed to object in the moment. Federal decisions have added lawyers’ ethical obligations to their evaluation of these claims.

These distinctions remain subtle and courts’ approaches vary. Experienced trial lawyers likely will avoid problems in either venue by sticking to the evidence, focusing on sound principles of persuasion, and understanding the growing body of case law on this dynamic issue.

Follow the evidence—and evidence can include impeachment for bias

Rule 269(e) of the Texas Rules of Civil Procedure requires counsel to confine argument “strictly to the evidence and to the arguments of opposing counsel.” But “strictly” in this context leaves open wide areas for the advocate that has elicited significant amounts of favorable evidence.  As Chief Justice Wallace Jefferson observed in In re Toyota Motor Sales, 407 S.W.3d 746 (Tex. 2013), “any evidence in the record is fair game.” That includes the right to argue bias in the record—such as fees to experts, bonuses to employees, and so on. Evidence of bias is thus not only fair game; exclusion of it may violate the proponent’s constitutional rights. For example, in Ellis v. Capps, 500 F.2d 225 (5th Cir. 1974), the court observed that to limit a “searching inquiry” as to bias “would raise serious due process problems.”

Hyperbole

Trial counsel’s colorful language in closing may also give rise to claims of improper argument. But such challenges often fail. In Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835 (1979), the court observed that “hyperbole has long been one of the figurative techniques of oral advocacy. Such arguments are a part of our legal heritage and language.” Hyperbole can even extend to calling the party “a liar, a cheat, a thief, and a fraud,” according to Clark v. Bres, 217 S.W.3d 501, 509 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

However, as a recent federal decision explains, “legitimate ‘oratory’ and ‘hyperbole’ can only extend so far. If closing argument crosses the line to impermissible prejudice, a new trial may be appropriate.” Clapper v. Am. Realty Investors, Inc., 95 F.4th 309 (5th Cir. 2024). Lawyers need guidance, however, on where to draw the line, particularly with respect to the game-time decision of objecting at the time of the argument or, alternatively, depending on an appellate court to deem the argument “incurable”—and thus relieving the opponent of the obligation to object.

Failure to object and “incurable error”

Generally, Texas state courts tend to require objections and view after-the-fact motions for new trial with skepticism; they usually refuse to allow to an adversary to “lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain[ing] for the first time of improper argument in a motion for new trial.” Arias v. Brookstone, L.P., 265 S.W.3d 459 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). As the Texas Supreme Court reasoned in Living Centers of Tex., Inc. v. Penalver (2008), “[t]ypically, retraction of the argument or instruction from the court can cure any probable harm. . . . Rather, incurable statements encompass arguments that strike at the courts’ impartiality, equality and fairness because they inflict damage beyond the parties and the individual case under consideration if not corrected.”

Thus, as the Houston Court of Appeals decision in Clark explained, to establish that an argument was incurably improper, the complaining party must prove: “(1) an improper argument was made; (2) that was not invited or provoked; (3) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial court; and (4) that by its nature, degree, and extent, constituted reversibly harmful error based on an examination of the entire record to determine the argument’s probable effect on a material finding.”

The few cases in which “incurable” arguments occur have tended to involve racial stereotyping. Most recently, the Texas Supreme Court followed its long line of cases on this point in Alonso v. John, 689 S.W.3d 911, 913 (Tex. 2024). In Alonso, plaintiffs’ counsel in a personal-injury case used the plaintiff’s race and gender (she was a Black woman) in asking the rhetorical questions “[b]ecause it’s a woman, she should get less money? Because she’s African American, she should get less money? No.” The Supreme Court concluded that “[t]his inflammatory argument was uninvited and unprovoked.” The Court reasoned that nothing in the record indicated any prejudice by the defendants against the plaintiff, much less any suggestion that she should receive less money because of “these immutable characteristics.”

Thus, Texas courts seem to require racial or gender stereotyping before deeming argument “incurable.” Federal courts seem to recognize a wider range of improper rhetoric that they will reverse even in the absence of an objection at the time of argument—invocation of local prejudice and, more generally, violations of the Texas Lawyer’s Creed and legal ethics in general. In the 2024  Clapper decision, for example, the Fifth Circuit catalogued how the improper argument pervaded the closing and the case in general, including “attacks against opposing counsel, references to Clapper’s wealth, matters not in the record, appeals to local bias, and suggestions of Clapper’s bad motives, abandoned all dignity, order, and decorum, which we have described as the hallmarks of all court proceedings in our country.”

The court reasoned that “[w]e may grant a new trial, even when counsel fails to object in closing, if the closing argument “affect[s] the substantial right of the parties” by “seriously prejudice[ing] [Clapper’s] right to a fair trial . . . .” The court observed that the trial judge “expressly directed the parties to forgo objections during closing argument, in favor of sidebar conferences.” Further, Clapper noted that “[t]he district court’s two curative instructions and charge regarding counsels’ remarks were not sufficient to overcome the severe prejudice resulting from the attorneys’ statements.” The court further observed that “[s]hortcomings at closing argument can be particularly damaging to the judicial process because closing argument often has a strong impact on the jury as it is the last thing that it hears.”

Perhaps most significantly, Clapper noted that improper argument “violates the proper balance of civility and advocacy in the legal profession,” citing the Texas Lawyer’s Creed as a guide to “eradicate abusive tactics that had become a disservice to our citizens, harmful to clients, and demeaning to our profession.”

In at least two recent cases, Texas state courts have added another category of incurable argument: attempts by plaintiffs’ personal-injury lawyers to punish defendants when arguing for noneconomic pain-and-suffering and mental-anguish damages—even though plaintiffs sought no punitive damages. In a 2024 decision, for example, plaintiffs’ counsel did just that “by suggesting that the jury compare the cost of an expensive painting to the value of a human life.” Team Indus. Servs., Inc. v. Most, 2024 Tex. App. LEXIS 3389, 2024 WL 2194508 (Tex. App.—Houston [1st Dist.] 2024, no pet.). As the Supreme Court observed in a similar case, Gregory v. Chouhan, 670 S.W.3d 546 (Tex. 2023), courts have an obligation to prevent improper jury argument and, citing Rule 269(g) of the Texas Rules of Civil Procedure, “will not be required to wait for objections to be made when the rules as to arguments are violated.” Although Rule 269(g) seems to apply to the power of courts to limit improper argument sua sponte—and not give textual authority to allow appellate courts to deem argument “incurable”—these recent decisions appear to have read the rule to give them power to reverse a judgment based on a verdict obtained by improper argument, even without an objection at the time of the argument.

Hard blows, but not foul ones

As Clapper explains, trial lawyers may “strike hard blows,” but they are “not at liberty to strike foul ones.” To know the difference, however, trial lawyers must continue to study this evolving area of jurisprudence. They should bear in mind that improper argument may not only lead to a mistrial or reversal, it could trigger issues relating to the lawyer’s ethical conduct.

David K. Bissinger is a trial lawyer in Bissinger, Oshman, Williams & Strasburger LLP in Houston, Texas. His practice focuses on complex commercial trials, arbitrations, and investigations involving energy, securities, real estate, health care, and other industries.

Reprinted with permission from 12/23/24 Texas Lawyer © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

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