Snatch Defeat from the Jaws of Victory – A Trial Attorney’s Nightmare

The phrase has been around along time and many attorney’s prove it true time after time.  Sometimes the old saying “less is more” should be employed.

The phrase “snatch defeat from the jaws of victory” was used in a New York Times sports story dated March 5, 1891.  A sports reporter of a baseball game was sorely disappointed by the performance of a team named the White Stockings and he wrote:
The White Stockings yesterday earned their third defeat for the season. They were badly self-whipped, and in this lies their humiliation. Were they fairly defeated after having played a creditable game there would be no censure for them; but when they snatch defeat from the jaws of victory there can be little sympathy for their deserved misfortune.

This phrase must be ringing in the ears of an attorney who recently had a $900,000 jury award in an employment discrimination case, including $600,000 in punitive damages reversed by a federal appeals court.

The plaintiff, Mindy Gilster, had sued her former employer Sioux City branch of Primebank and her former supervisor alleging that her supervisor spoke to her and touched her in an offense manner. Her employer, the bank reprimanded her supervisor this occurred in 2009 and 2010. However when the Plaintiff had filed with the Iowa Civil Rights Commission in 2011she was fired. What occurred and the firing was the basis of Ms. Gilster lawsuit.

The lawyer for the plaintiff,  Brooke Timmer, during closing arguments told jurors about a personal anecdote. She told the jury as a law student she had also been sexually harassed. She was a victim of  a professor’s sexual harassment.

In the case of Gilster v. Primebank the St. Louis-based 8th U.S. District Court of Appeal in its opinion stated “counsel’s recounting of her personal experience — facts that were not in evidence  —  was  aimed  at  enhancing  her  client’s  credibility  by  telling  the  jury  that counsel,  too,  had  endured  similar  misconduct.” The Court held these remarks were improper and unfair. The Court went on to say “Having  carefully  reviewed  the  entire  trial  record,  we  are  left  with  the  firm conviction that the timing and emotional nature of counsel’s improper and repeated personal  vouching  for  her  client,  using  direct  references  to  facts  not  in  evidence, combined  with  the  critical  importance  of  Gilster’s  credibility  to  issues  of  both  liability and damages, made the improper comments unfairly prejudicial and require that we remand for  a new trial.    This  is  not  an  action we take  lightly,  for  it  means  that  Gilster is  deprived  of  a favorable  jury  verdict,  and that  all  the witnesses  may  need  to  endure again what was  surely  a stressful,  unpleasant trial.    However, as  we said many years ago  in  an  opinion  that  has  been  frequently  cited  by  other  courts,  “when  a  lawyer departs  from  the  path  of  legitimate  argument,  [s]he  does  so  at  [her]  own  peril  and  that of[her] client.” Kelly, 84F.2dat 573.”

The Court went futher and stated:
“In  our  view,  counsel’s  rebuttal  argument  included  numerous  comments  that clearly  violated  the  following  provisions  in  Rule  32:3.4  of  the  Iowa  Rules  of  ProfessionalConduct, titled Fairness to OpposingPartyand Counsel:

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 ofa civil litigant . . . .” ”

The Des Moines Register in an article written on April 7, 2014 by Grant Rodgers entitled “Iowa Lawyer’s Harassment Story Found Improper for Jurors” reported that since Gilster’s trial, Ms. Timmer has stopped using the anecdote in closing arguments.

Winning cases at trial, whether it be a wrongful termination claim, personal injury or medical malpractice is a challenge under the best of circumstances.  The same applies to law and motion. It is important to keep in mind what one argues, sometimes less is more . To “Snatch Defeat from the Jaws of Victory” is truly a trial attorney’s nightmare. Such an experience is not only a painful experience but as here can mean “rolling the dice all over again.” Not a great place to be.

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