The Oregon Supreme Court reversed a defense verdict in a truck-car accident case because the trial court did not allow the plaintiff's attorney an opportunity to respond to the closing defense argument. For closing arguments the practice is that the attorney for the injured party (the plaintiff) talks to the jury first. Then, the defendant makes its argument. Finally, the attorney for the injured party responds to what the defendant said.
In the case of Stella Charles v. Palomo, after the defense lawyer uttered his closing argument, the trial judge began to instruct the jury. The lawyer for Stella Charles, interrupted, "Rebuttal, Your Honor?" The trial judge refused his request for rebuttal argument.
Oregon's Supreme Court interpreted ORCP 58 B(6), which sets forth the normal practice that the injured person shall "commence and conclude" the closing arguments. The trial court tripped up on the second sentence of the rule, which covers the very unusual situation of a plaintiff skipping the opportunity to make the first closing argument.
To win an appeal, a party must prove that the trial court's mistake could have affected the outcome.
At trial, the defense lawyer highlighted defendant's testimony claiming that the real problem was that Ms. Charles's vehicle stalled. Defendant said he got that information from the police officer. Defendant testified that Ms. Charles admitted to the cop that her car stalled. This "fact" of the car stalling was in the last argument the jury heard before it decided against Stella Charles.
The Oregon Supreme Court held that it might have made a difference if the Ms. Charles's attorney had the last word to point out: (1) The police officer did not mention stalling in the police report; (2) Defendant did not call the police officer to testify; (3) There was no evidence of stalling other than defendant's claim; (4) Defendant's stalling claim was new: in his sworn testimony months before trial, defendant never mentioned this "fact," and (5) Defendant had a strong incentive to make it all up.
Thanks to Court's decision, Ms. Charles gets another opportunity to seek justice in the trial court.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
