Well, the 25th anniversary went fine.  And yes, I was kidding about the multiple marriages.  On the other hand, things probably would have gone better had I not leaned across the table at dinner and told My Lovely Bride, “You know, if I’d killed you back then, I’d be out of prison by now.” 

Ah, the language of love.

I had my own Moment of Duh the other day.  I was going to take the 8th District to task on one of its decisions last week, Meeks v. Kramer.  It was a hotly contested personal injury case involving whether the accident really was the cause of the plaintiff’s injuries.  The defendant had hired a doctor to perform an “independent” medical examination, but didn’t call the doctor as a witness at trial.  The plaintiff, oddly enough, did subpoena in the doctor, but didn’t call him either.  And then…

During closing argument, Meeks informed the jury that although Dr. Ghanma [the defendant’s doctor] was subpoenaed to testify, it could make inferences as to why he was not called as a witness at trial. Meeks’ attorney told the jurors that he spoke with Dr. Ghanma in the hallway and questioned him. The attorney was about to inform the jurors as to what Dr. Ghanma told him, but Kramer objected, and the trial court sustained the objection. In lieu of telling the jury what Dr. Ghanma said to him, Meeks’ attorney stated that the jurors would not have “wanted to hear” Dr. Ghanma’s testimony because it “wasn’t honest.” At that point, Kramer stated that such argument was “absolutely improper” and the trial court held a sidebar. Following the sidebar, Meeks’ attorney was instructed to stop referring to Dr. Ghanma and to move on in his closing argument.

The appellate court agreed that this was improper, but affirmed the verdict, holding that the defendant waived the error by not asking for a curative instruction.

When I first read the decision, I thought that was a harsh result, given the flagrancy of the misconduct by plaintiff’s counsel.  The failure to ask for a curative instruction was somewhat understandable; counsel often don’t ask for a curative instruction in these cases, because it may only serve to highlight the inflammatory remarks.  Plus, let’s face it, the idea that curative instructions do any good is one of the great Easter Bunny fantasies of the law; as a judge once remarked, you can’t throw a skunk into the jury box and then instruct the jurors not to smell it.  Indeed, the courts have regularly ruled that a lawyer’s failure to ask for a curative instruction is a trial tactic not subject to attack on ineffective assistance grounds.

But then I went back and read the decision, and it highlights one of the real problems of appellate attorneys:  failure to protect the record in the trial court.  Here’s the problem:

Kramer now appeals, arguing that Meeks’ reference to Dr. Ghanma during closing argument was grossly prejudicial and that the trial court abused its discretion in failing to correct the prejudicial effect of the reference.(My emphasis.) 

It’s kind of hard to argue that the trial court erred in not doing something when you didn’t ask them to do it.

Does this mean you should always ask for a curative instruction, say, in cases of prosecutorial misconduct in closing argument?  Meeks cites a couple of cases for the proposition that you have to, one of which is a Supreme Court case involving the failure to request an instruction to cure improper questioning in cross.  You may be able to get away with just requesting a mistrial instead, although to be on the safe side the request for an instruction is the way to go.

Of course, all this sort of glosses over the question I raised earlier:  given the inefficiency of curative instructions, is there a purpose to requiring the offended party to request them?

Which brings up another point:  while there’s a fair amount of empirical research on how juries come to decisions, how they regard concepts like punitive damages, the effectiveness of expert testimony, and other big topics, there’s virtually no research on the little things that come up in every trial.  Wouldn’t it be nice to know whether jurors tended to believe you were trying to hide something when you made an objection?  How jurors responded to different styles of cross-examination?  Whether curative instructions made any difference?

I’ve been practicing law for 31 years now.  I know how party affiliation is affected by how your parents voted, how economic mobility in America compares to that in Sweden, how health outcomes are affected by income status, and I know how to find the answers to just about any other social, economic, or psychosocial issue.  But I don’t know the answers to those three questions I posed in the last paragraph, and I’m not sure anybody else does, either.