Plaintiff's Counsel's Misconduct Gets New Trial for Company

Whittenburg v. Werner Enterprises, 2009 WL 884616 (4/3/09) (Published) - A civil case , but should be useful in prosecutorial misconduct arguments on appeal. Once again a big company facing money damages seemingly gets more protection than a defendant facing the loss of liberty. Counsel's closing argument that included reading from an imaginary letter from the company to the traffic victim's daughters placing the jurors in the victim's family's shoes, introducing evidence not in the trial record and excoriating the defendant for defending itself, [over defense objections] was so prejudicial as to warrant reversal of a multi-million dollar damage award. Helpfully, the 10th says:"the d. ct.'s discretion regarding granting a new trial is not boundless. We have the advantage of considering how individual cases fit in a wider context and pass judgment after more deliberation ... we may not merely rubber stamp the district court's judgment." "There must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice." The 10th emphasized its reliance on the combination of factors