Via the Law & Magic Blog (via @walterolson via @nomadtoes), I learned ahead of time of an article by Shannon P. Duffy in today’s Legal Intelligencer:
In a motion in limine in Blash v. ABA Construction Group, the plaintiff’s lawyers begged the judge to forbid their opponent, Steven G. Leventhal of Reger Rizzo & Darnall, from performing magic tricks or even mentioning that he is a professional magician.
Leventhal’s response (the cause of most of the laughter) asked the judge to use his or her own sleight of hand to make the plaintiff’s motion disappear — with prejudice.
Now that the case has settled for $1.2 million, the motion will never be ruled on by a judge.
Just as well; it’s very hard to prevail upon a judge that opposing counsel’s closing argument was prejudicial, unless the closing either inappropriately referenced previously excluded or stricken testimony, or if counsel tried to inflame the jury through bias or emotion.
For kicks, I threw some search terms into Lexis and, whaddayaknow, found something similar, from the Supreme Court of Kansas:
During closing argument, an attorney is given wide latitude in the language and manner of presenting argument and may indulge in impassioned bursts of oratory and may use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence. State v. Duke, 256 Kan. 703, 719-20, 887 P.2d 110 (1994). In prior cases, analogies similar to the prosecutor’s “puff of smoke” argument in this case have been found to be within the permissible bounds of rhetoric and not gross or flagrant.
In Duke, 256 Kan. 703, 887 P.2d 110, defense counsel attempted in closing argument to cast doubt on the veracity of the State’s witnesses and the quality of the police investigation. In response, the prosecutor told the jury there had been “‘a lot of smoke in this case. . . a lot of smoke that was given to you in the argument of the defendant when he closed his case'” and, after objection to this argument was overruled, the prosecutor continued, “‘It’s smoke and mirrors. And when you have that, you get illuminations and things . . . trying to confuse you.'” 256 Kan. at 718. When the defendant argued on appeal that the comments implied to the jury that defense counsel was trying to intentionally mislead the jury, we found that the comments were within the permissible bounds of rhetoric. 256 Kan. at 719-20.
In State v. Baker, 249 Kan. 431, 447, 819 P.2d 1173 (1991), we concluded that the prosecutor’s closing argument which included comments that the “nice boy image” that the defense was trying to give the jury was “nonexistent,” and “it’s a smoke screen” was neither gross nor flagrant and had not deprived the defendant of a fair trial.
Although “smoke screen” types of argument have been noted in some cases where the prosecutor’s overall arguments were found improper, the comments were not found improper merely because of the smoke screen references.
State v. Rodriguez, 269 Kan. 633, 643-644 (2000). The law isn’t much different anywhere else, including Pennsylvania. But that’s not actually a trick, just language describing a trick. So perhaps there’s room for prejudice in the actual presentation.
The article also reveals an impressive amount of candor from plaintiff’s counsel, who filed the motion:
Dooley, in an interview, said that he and Coppol decided to file the motion to “bust his [Leventhal’s] stones,” and to throw Leventhal off his game.
But Dooley also said he believed the law was on his side and that a judge would likely agree that performing magic tricks during a trial is improper.
Maybe so. Defense counsel defends his closing as follows:
“That the undersigned counsel opted to travel the globe to learn a special set of performance skills rather than wasting his brain cells drinking his summers away at the Jersey Shore should not be held against him,” Leventhal wrote.
Frankly, I’d worry about performing a magic trick at closing, as it would not only distract the jury from what you’re saying (see “Monkeys in Business Suits“) but would run the risk of deeply offending jurors who had not been won over to your arguments, who would consider it all the evidence they needed that you were, as they suspected, a professional con man paid to mislead and to deceive them.
My question is not whether the judge would have granted the motion (probably not), but whether the magic trick closing is ever really worth doing. Just the facts, ma’am.