Friday, December 16, 2011
Usually Appellate Division decisions about inflammatory summations provide little illumination. They don't quote the arguments that were supposedly inflammatory as a rule, and therefore don't really stand for more than the proposition that you shouldn't say inflammatory things. Chappotin v. City of New York is different. Now we know that it is okay to say, "(1) "this is a man who has played the system going on 15 years"; and (2) "here’s someone who doesn’t have a concern about getting medical care … he doesn’t have a concern about working". Unfortunately the plaintiff didn't preserve his record properly, so we don't know if it's okay to say, "(3) "this is someone who understands how to make his way in the world... he has come here with a story about falling here"; or, (4) "I submit to you that the truth that you heard from the plaintiff stopped by the time he was picked up on the corner of 112th Street and Third Avenue"; or, (5) "everything from that time forward has been designed to create and advance a lawsuit"; or (6) "money is a huge motivator... now, Lord knows it’s true, that he is looking for my money... and I don’t want to give it... and you shouldn’t want to give it when you really evaluate how this case has come to you"; or, (6)"this is a classic case... you have been lied to by the plaintiff... there is no nice way to say this... you have been lied to by the plaintiff and his goal is to obtain money." Too bad. I would like to know if I could say those sort of things.
My 2c: (3) and (6) are dodgy because they could be construed to refer to the plaintiff's being on disability as a ground for denying relief. (4), (5) and (7) are well within the bounds of advocacy.
I like (6) because defense counsel calls it *his* money. It would be even better if he said something along the lines of "my money, and your money", or "our money". It seems odd to me that the plaintiff wasn't on his feet for all of these, especially since the ones he objected to are the most vanilla.