A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance in this area and also fired a metaphorical “warning shot” to counsel.
The implication of Cohen v. Lioce are particularly significant for personal injury defense counsel, who are often retained by insurers who may have an interest in pushing counsel to make arguments consistent with insurer public relations efforts to disparage lawsuits and the extent of plaintiff injuries in minor impact automobile accidents or other claims toward which insurers may take a particularly “hard line” regarding defense and settlement. Conversely, plaintiff’s counsel should realize that the court’s heightened interest in policing attorney conduct at trial logically limits use of appeals to juror sympathy, stereotypes about business or insurer defendants, or lawsuits as a means of wealth distribution or enhancement of social welfare. Distilled to its essence, Cohen v. Lioce provides cautionary warnings to trial counsel.
Nev. Lawyer, Aug. 2007, at 12.
Stempel, Jeffrey W., "Lawyer Professional Responsibility in Litigation" (2007). Scholarly Works. Paper 184.