U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

Vouching for Your Clients -- A $900,000 Mistake

This month, in the case of Gilster v. Primebank, the Eighth Circuit upheld the long-standing rule that lawyers cannot vouch for their clients.

The Facts

This was a sexual harassment case. Plaintiff claimed that Joseph Strub, her supervisor at Primebank in Sioux City, Iowa, made comments about her legs, placed his arm on her shoulders, told her that they should hook up, pressed his pelvis against her backside, massaged her shoulders, and told her to bend over and show more bra to bring in more customers. Defense admitted that when the plaintiff inquired about a bonus in front of colleagues at a meeting, Strubs told her to take out her teeth (she wears dentures), come to his office and close the door.

After Plaintiff complained of the continual harassment, Primebank started interviewing her coworkers, encouraged them to note performance problems and monitored her email. Three days after she filed a second discrimination complaint with the Iowa Human Rights Commission, Primebank fired her. Plaintiff had suffered sexual abuse as a child, which made her injuries from Strub's conduct worse. The harassment and retaliation caused her to suffer from depression, anxiety, excessive alcohol consumption, and self-mutilation. The jury found for her and awarded her $40,000 for past emotional distress, $200,000 for future emotional distress, and $600,000 punitive damages.

The Issue

The problem was that in closing arguments, the plaintiff's attorney recounted her own tale of sexual harassment, bemoaned her lack of courage in not reporting it and lauded her client's strength and fearlessness.

Defense counsel objected to the plaintiff's attorney testifying to her own experiences, rather understandable since (1) she (we assume) had not been sworn in as a witness and (2) her experience would not have been relevant evidence. More to the point, to quote Rule 32:3.4 of the Iowa Rules of Professional Conduct:

A lawyer shall not ... in trial, allude to any matter ... that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant ...

The defense objection was overruled. The trial judge later admitted that overruling the objection was an error. Obviously. But he found that the defense had not been unduly prejudiced.

The Eighth Circuit found otherwise. Relying on Whittenburg v. Werner Enterprises, it looked at three factors in determining that the vouching was prejudicial. First, the vouching was not a minor aberration, but rather permeated the entire rebuttal argument. Second, the trial court committed reversible error by not sustaining defense attorney's timely objection. Third, the size of the damage award suggested that plaintiff's improper comment had a prejudicial effect.

The judgment of the trial court was reversed and remanded for retrial.

The Takeaway

When trying a case, lawyers must abide by all their ethical duties. If they fail to do so in a way that prejudices the outcome of a case, it can cost their clients a favorable jury verdict, force everyone to go through a new trial and damage the lawyer's reputation.

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