IS IT A REVERSIBLE ERROR FOR PLAINTIFF’S COUNSEL TO BE ALLOWED TO MAKE A REBUTTAL CLOSING ARGUMENT AFTER DEFENDANT HAS WAIVED ITS CLOSING?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Doty v. Wells, 9 Kan. App. 2d 378, 682 P.2d 672 (1984).

This case addresses the following issue:

Is it a reversible error for plaintiff’s counsel to be allowed to make a rebuttal closing argument after defendant has waived its closing?

This case dealt with the peculiar instances in which a defendant declines to make any closing argument to the jury. Id. at 380. Normally, Kansas Rule 168 permits a plaintiff to make a closing argument and a rebuttal closing following the defendant’s closing argument. Id. at 381. However, the Rule also provides that “if, after plaintiff has made an argument, defendant waives argument, then no further argument shall be permitted.” Id. The court determined that, based upon the plain language of the rule, it must be a reversible error to allow a plaintiff to make a rebuttal closing after defendant has waived closing argument altogether. Id.

This case really revolves around what happened in the final hour of the trial. Id. at 380. Plaintiff was told that his portion of the closing argument would be 15 minutes for the first portion of the closing and 15 minutes for rebuttal. Id. at 382. Defendant was offered 30 minutes for his closing argument. Id. After Plaintiff completed his first 15 minutes, the court gave the floor to the Defendant. Id. However, the Defendant waived his closing argument, based in part on the fact that he knew Plaintiff’s counsel had held back his most striking argument for rebuttal. Id. Over the Defendant’s objection, the court allowed Plaintiff to make a rebuttal argument despite the waiver of closing by Defendant. Id.

The court began with the plain language of Rule 168, which states that a waiver of closing by a defendant ends all closing arguments. Id. at 380-81. The court was sympathetic to position Plaintiff had been placed in, which the trial court had largely relied upon in decided to allow closing and to deny a new trial. Id. at 381-82. Plaintiff had been promised two 15 minute arguments, and had marshalled his arguments accordingly. Id. at 382. When Defendant waived closing, the trial court felt that Plaintiff’s reliance needed to be accounted for, and without having the rule before it, the judge allowed the additional argument. Id.

The court, though sympathetic, could not excuse this error. Id. at 383. The language of the rule was too obvious to dance around, and the court had directly violated that rule. Id. Further, the court did not feel that it could apply an abuse of discretion review without jeopardizing the entire validity of the rule. Id. Basically, if it was alright to ignore that portion of the rule, who is to say that the time limitations in the rule couldn’t be disregarded? Id. Thus, the only recourse was a new trial concerning the issues raised in the improper portion of Plaintiff’s closing argument. Id.