The Golden Rule and summations

When this case first went to the Court of Appeals, the Second Circuit used it to clarify when someone could invoke the civil rights laws to redress national origin discrimination. It was a ground-breaking decision, in which the Court explored what it meant to be Hispanic. For the plaintiff, it was a devastating loss because the Second Circuit vacated a million-dollar verdict over trial errors. Plaintiff loses the second trial, and the Court of Appeals affirms that trial loss.

The case is Barella v. Village of Freeport, a summary order issued on March 13. The issues this time around are different. It is not easy to get a new trial based on trial errors, as the judge has discretion to manage the courtroom and the standard of review is "abuse of discretion." Plaintiff argues he was denied a fair trial because defendants' lawyer invoked the Golden Rule in summation.

What is the Golden Rule? At trial, it's when you ask the jury to place themselves in your client's shoes. It's considered a manipulative tactic that plays on juror sympathy. But the Golden Rule is only prohibited when you are addressing damages. It does not apply when you are talking to the jury about liability. Plaintiff invites the Court of Appeals to extend the Golden Rule to summations when they address liability, but the Court of Appeals (Cabranes, Raggi and Vilardo [D.J.]) will not do so.

Barrella argues that Hardwick’s counsel engaged in “golden rule” argumentation during closing, which asks jurors to place themselves in the position of a party. He invites us to change our precedent regarding such arguments, requesting that we extend our prohibition on golden rule arguments beyond the context of damages (the only context in which they are forbidden) to any kind of liability. See Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990). We decline to do so. Regardless of whether Hardwick’s counsel in fact made a “golden rule” argument during closing, his argument was not made in the context of damages, and a new trial is not warranted.