In Lawyers Weekly Chris Duggan Describes His SJC Win in Overcoming "Reptile Tactics" by Plaintiff's Counsel

In Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, et al., SJC 12937, _ N.E.3d 2021 WL 2024453, the Supreme Judicial Court affirmed a trial judge’s decision order- ing a mistrial based on the plaintiff ’s “reptili- an” closing argument. The court also reaffirmed the longstanding Massachusetts
practice that trial counsel need not interrupt an opponent’s closing argument to lodge an objection as long as the objection is made immediate- ly after the argument concludes.
Trial lawyers are expected to know and fol- low the rules of proper advocacy, and trial judges retain the authority to act when counsel violates those rules. The ultimate goal is a fair trial for all parties. Zealous advocacy does not justify a “win at any cost” approach to trial practice.
Case facts Plaintiff Meaghan Fitzpatrick claimed that she suffered substantial dental and related in- juries when she broke a tooth on a bone fragment in a piece of hamburger. She sued Wendy’s and a meat supplier, JBS Souderton.
Fitzpatrick’s counsel delivered a closing argument that, in many parts, closely mirrored language from the book “Reptile: The 2009 Manual of the Plaintiff ’s Revolution” by Donald Ball and Donald Keenan. At times, counsel appeared to repeat language from the book almost word for word.
The Reptile book encourages counsel in closing argument to scare jurors, denigrate corporate defendants, and ingratiate them- selves with the jury rather than marshaling facts and delivering a closing argument based on the facts proven and fair inference from evidence introduced at trial. The Reptile strategy can be especially effective for the last law- yer to speak.
Massachusetts courts do not allow rebuttal in most cases, so an unfair argument not based in the evidence goes unanswered in the jury’s ears. Improper “reptilian” arguments foist on defense counsel an unfair Hobson’s choice: either interrupt and object, which serves only to highlight the wrongful remarks, and perhaps appear rude, or say nothing and thus appear to assent to a baseless charge. That is exactly why the rules prohibit them and why the Reptile book encourages its followers to use them. Curative instructions, or worse, motions to strike, are rarely effective in the face of an improper closing. They, too, serve only to highlight improper comments and in fact compound, rather than cure, the damage done by a Reptile closing. As the Roman poet Horace observed, a word once spoken cannot be recalled. Oral ar- guments are not word processing; there is no “delete” button. After Fitzpatrick’s summation, before the jury retired, defense counsel asked for a side- bar and moved for a mistrial on the grounds that the argument violated multiple well-established rules governing proper closing arguments pronounced through decades of Massachusetts precedent and collected in the Massachusetts Guide to Evidence, §1113(b)(3). Examples included violating the “Gold-en Rule” (asking jurors to put themselves in the place of the plaintiff), inserting personal opinion, equating the defendants with all “big companies,” making assertions outside of the trial evidence, and repeatedly relying on im- proper appeal to juror emotion and prejudice.
The trial judge, Heidi E. Brieger, expressed serious concern about the plaintiff ’s closing argument but opted to defer ruling on the mistrial motion until after the jury verdict. She reasoned that if the jury returned a defense ver- dict, the mistrial motion would be moot.
Her practical approach conserved judicial resources by not wasting the time and effort already invested in the trial by the litigants, jurors and the court if the defendants ultimately were not harmed by the improper argument.
That procedure was endorsed by the SJC in Commonwealth v. Brangan, 475 Mass. 143, 147-48 (2016), decided just months before the Fitzpatrick case was tried. While Brangan was a criminal case, the opinion drew no distinction between civil and criminal cases in this regard.
When the jury returned a large verdict for the plaintiff, Brieger revisited the mistrial mo- tion. After briefing, argument and a review of the trial transcript, she allowed the defendants’ motion for mistrial.
In the second trial, plaintiff ’s counsel es- chewed the Reptile approach. The jury re- turned a plaintiff ’s verdict, which, after costs assessed against her, was less than $6,000.
Appeals Court’s ruling Fitzpatrick appealed Brieger’s allowance of the mistrial motion. In a lengthy opinion, the Appeals Court acknowledged that counsel’s closing argument was improper in numerous respects. Nonetheless, the Appeals Court vacated the trial judge’s mistrial order, holding that the judge had applied an incorrect legal standard by ruling on the mistrial motion after the verdict, instead of treating the motion as a motion for new trial under Mass. R. Civ. P. 59. Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., et al., 96 Mass. App. Ct. 410, 431-432 (2019).
SJC’s decision
The SJC allowed Wendy’s petition for further appellate review, vacated the Appeals Court’s decision, and affirmed Brieger’s mis- trial declaration.
Like the Appeals Court, the SJC quoted several especially troublesome passages from counsel’s summation, some of which had come almost verbatim from the Rep- tile book.
The SJC reaffirmed the power of trial judges to order mistrials when something occurs that is likely to deprive the parties of a fair trial. The court also held that a trial judge’s decision on a mistrial motion will be re- viewed only for abuse of discretion.
The court held that Brieger did not abuse her discretion in Fitzpatrick, either by follow- ing the Brangan procedure or by granting a mistrial based on counsel’s argument.
Analysis
The Fitzpatrick decision teaches several important lessons for all civil trial lawyers. Most importantly for our profession, lawyers are on notice that “reptilian” arguments are improper and will not be tolerated in Massachusetts.
The Superior Court, Appeals Court and SJC all pointed to specific phrases and arguments that violated Massachusetts trial rules. The SJC affirmed the Superior Court’s ruling that declared a mistrial as a result of such an argument.
Trial lawyers are well advised to read all three opinions, which, together, highlight the types of closing arguments that are improper and justify a trial judge in ordering a mistrial despite the inconvenience and judicial waste that will result.
The opinion restates the court’s commitment to the principle that all parties are en- titled to a fair trial where, in the trial judge’s words, the lawyers “stay within the lines.” Fitzpatrick v. Wendy’s Old Fashioned Hamburg- ers of New York, Inc., et al., 2017 WL 6040174
59, under which even a grossly improper argument is evaluated only in the context of the trial as a whole.
Some might view this as an opportunity rather than a warning. An unscrupulous law- yer could gamble that a blatantly improper summation might be worth a try because tri- al judges are, appropriately, reluctant to grant mistrials so close to the end, and new trial motions are rarely successful.
Thus, at first blush it might seem that the Fitzpatrick case actually encourages, or at least tempts, the last counsel to speak (almost al- ways plaintiff ’s counsel, in civil cases) to en- gage in the very conduct condemned by all nine judges who examined the Fitzpatrick trial record.
Yet in light of the Fitzpatrick result, such a calculation is risky — and unprofessional. The trial judge, who was present while events unfolded, awarded a mistrial and the SJC up- held that decision. In so ruling, the court re- affirmed its confidence in trial judges to act in the face of improper argument and restated the standard that the trial judge’s decision will not be reversed except for abuse of discretion.
Massachusetts trial lawyers now have clear direction that arguments such as those out- lined in the Reptile book are not tolerated in the commonwealth and justify a mistrial.