Does asking jurors to "imagine" a story that blends evidence and fantasy cross the line into impermissible jury argument?  What if you add "abusive references" to opposing counsel?  Will the combination exceed the outer boundaries of what a lawyer may properly argue to a jury?

The Tenth Circuit held in Whittenberg v. Werner Enterprises Inc., No. 07-6063 (10th Cir. Apr. 3, 2009), that plaintiffs' counsel went too far and that therefore the ensuing $3.2 million verdict could not stand.  The case involved the Whittenbergs' claim that a trucking company, Werner Enterprises, and a trainer-trainee team of drivers negligently caused Mack Whittenberg to drive into a Werner semi-trailer truck as it straddled a dark highway after an abortive attempt to make a u-turn. 

The lawyer for Mack and his five children said this in his closing, during which defense counsel twice objected:

And so I want to take you back to November 30th, and I want you to do just an imagining thing with me.

You recall Ann Whittenburg sitting there on the stand and saying, “Sunday afternoon we saw Mack off that day that he went to the ranch.”

Now, just bear with me; think with me.

Imagine that there’s Brit, and there’s Ann, and they sent Mack off, he’s on his way out there Sunday afternoon, maybe six o’clock. Mack turns around the corner as he leaves Palacio back to I-40 and he’s going to take 35 north on his way to 287 out of the Amarillo.

Brit turns around and gets ready to walk back in the house, and there’s an envelope sitting there on the floor, and he reaches down and he picks it up, and he gives it to Ann, and Ann opens it, and she looks at it, and it’s a letter.

It’s a letter to Brit and to Sarah and to Cecily and to Justin and to Amanda.

I’m just imagining, but listen to these facts.

This letter’s dated November 30th, 2003, and it’s from Werner Enterprises.

“Brit:

“That was the last time you will ever see your dad as you now know him. You should let your siblings know this.  “In just a little while, our company drivers, Jon Morlan and Marisela Neff, are going to get in one of our big semi-trucks in Limon, Colorado, and we’re going to head south toward Amarillo pulling a loaded trailer.

Ms. Neff will be driving. She’s too inexperienced to make this trip safely, and Mr. Morlan will be too tired to properly supervise her, and, while Mr. Morlan crawls in the truck sleeper and goes to sleep –

. . .

“Ms. Neff will be unable to properly follow the route that she and Mr. Morlan laid out, and she will be too confused to read the upcoming road signs.

“Our drivers will arrive in Boise City, Oklahoma, just ahead of your dad, sometime around midnight or thereafter. Ms. Neff will take a wrong turn west of Boise City, and Mr. Morlan – Mr. Morlan will be too in much of a – he’ll be in too much of a blue funk to be of any help to her after she does call on him for help.

–

“He will refuse to take the steering wheel when she calls for his help, and she will high-center the truck on the highway when she attempts a Uturn, rather than taking a little extra time to find a place that – safe place to turn around or to call for help. And Ms. Neff will center – will high-center this semi-truck out on the same highway that your dad will be traveling on his

make excuses, and our lawyers will try to blame the collision on your dad, saying it was just an accident and that he had the last clear chance to avoid it. We will never take responsibility for our driver’s actions.

“We will hire own – our own lawyers who will take your dad’s life apart. Our lawyers will focus on the fact that your dad comes from a prominent Texas Panhandle family, and our lawyers will expose every part of your dad’s professional and personal life in an attempt to make the jurors think poorly of him.

“Our lawyers will accuse him of being a trust-fund baby who intentionally remained under-employed just so he could bring this lawsuit and prove damages.

“Our lawyers will hire experts and will force your dad’s lawyers to hire experts in order to prove that he wasn’t at fault.

“We will fight to keep out of evidence that our driver-trainee pleaded guilty to unlawfully stop – unlawfully parking a stopped vehicle that night, and we will spend thousands of dollars to have –

. . .

“We will have our experts spend – we will spend thousands of dollars to have our expert perform a nighttime photo shoot in an effort to persuade your dad and possibly jurors that he was just not paying attention on that fateful morning.

“Our lawyers will spend whatever it takes to try to talk our way out of having to be accountable for what our inept trainer and our inexperienced driver did.

“We will subject your dad to a trial if we have to. We will do everything in []our power to convince the jury that your dad was really not all that injured in the first place, and that your dad is overreaching in trying to prove his damages.

“Of course, if none of that works, our lawyers will accuse your dad of being a failure because his law firm used to have 20 members and now it only has five.

“We will point out that he apparently lived off your Uncle George and your Aunt Ann Whittenburg simply because he couldn’t make it on his own.

“We w[i]ll not mention the fact that your dad sacrificed greatly as a single father to take care of the five of you while you were growing up and then devoted years as a nighttime caregiver for your Granny Grace so she could live with honor and dignity prior to her death.

“We will ignore the fact that your dad has a sense of pride in what your Grandfather Roy accomplished before him, and we will ridicule his 

love and respect for his family’s heritage, and then demean him by calling his love of the Spool Ranch a mere hobby.

“Oh, and while we’re at it, our lawyers will also try and discredit your dad’s lawyers by hinting throughout the trial that they have attempted to influence witness testimony against us.

“Of course, none of this is true, but we’ll keep using smoke and mirrors and half truths the best we can to try and shift the jury’s focus away from the real issue in this case, and that is our inexperienced driver trainee and our inept driver trainer attempted an improper U-turn and got highcentered and then failed to warn oncoming traffic – traffic of the danger it created, and that is what really caused, directly caused the collision in this case.

“Sincerely, Werner Enterprises.”

Id. slip op. at 4-7.  The vice in the argument, according to the court, consisted in its use of "invented facts" that aimed to arouse the jurors' sympathy and its heaping of "vituperative attacks on defendants and their counsel."  Id. at 11 & 12-13.

Blawgletter agrees that the argument would tend to evoke strong emotion.  What kind of company would deliver to a man's children a letter that foretells their father's impending accident and serious injuries, admits the company's fault, and confesses sharp tactics to deny them and their father a semblance of justice?  An evil one.

We feel less certain than the court that the argument must have so swept up the jurors that their verdict had to have resulted from unreasoning passion.  And surely a lawyer may argue that defendants knowingly took risks and didn't care about the consequences.  

May the lawyer also say the defendants made litigating and trying the case into an ordeal?  That they intended to do so even before the accident?   In the form of an imaginary letter to the victim's kids?