The Court of Appeals for the Tenth Circuit reversed judgment for plaintiff and remanded for a new trial on the basis of an improper closing argument. In Whittenburg v. Werner Enterprises, 561 F.3d 1122 (10th Cir. 2009), plaintiff’s counsel continually referred to facts not in evidence and made personal attacks on the defendant and its counsel. Objections were made during the course of the closing argument and overruled. The only instruction given by the Court was the standard instruction at the close of trial reminding the jury that counsels’ arguments are not evidence. In its opinion, the Court of Appeals quoted verbatim that portion of the final argument in question at pages 1125-1127 of its opinion. In concluding its opinion the Court said,
“In light of the confidence of these three factors” the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict ‘ we find ourselves compelled to conclude that this case must be retried. In so concluding, however, we underscore that our decision is not based on any one of these factors singly, but rather their combination after considering the argument as a whole. We also emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are ‘entitled to have someone speak with eloquence and compassion for their cause.’ Draper, 580 F.2d at 95. ‘Arguments may be forceful, colorful, or dramatic, without constituting reversible error.’ Kelly, 84 F2d at 576. Counsel may ‘resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.’ Stein, supra at ? 1.14 (Scope of permissible argument). But one thing they may not do is use closing argument to introduce massive amounts of putative evidence not in the trial record and then proceed to launch broadside attacks on an opposing party’s tight to bring suit or defend itself. While always reluctant to reverse the district court in matters concerning trial misconduct, and to burden both that court and the parties with a new trial, our appellate role ‘ a role that compels is to mark and guard the outer boundaries of acceptable trial conduct ‘ does not permit us to sit this one out.” (p. 1133)