Mock trial in law school was an amazing experience—but mock trial is not the real practice of law. Case in point: you can’t just stand up and say whatever you want during closing arguments. Even if the other side does not lodge an objection, they can still come back and ding you for want is called an “incurable argument”.
“Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per curiam). This rule exists to prevent the defense from taking the tactic to “lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of improper argument in a motion for new trial.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 467 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Turner v. Turner, 385 S.W.2d 230, 237 (Tex.1964)). “[T]ypically, retraction of the argument or instruction from the court can cure any probable harm…” Living Ctrs., 256 S.W.3d at 680. Thus, counsel for either side must object and request the court to issue an instruction for the jury to disregard the improper argument—an adverse ruling to the objection and instruction request will preserve the error for review in a later appeal. If the objection is sustained and an instruction given, then harm has been avoided according to Texas law. If the argument is “incurable,” then no objection is needed and the objection may be raised for the first time in a motion for new trial.
The “incurable argument” exception is a narrow doctrine reserved for arguments that “strike at the courts’ impartiality, equality, and fairness” and “damage the judicial system itself.” Living Ctrs.,, 256 S.W.3d at 681. “Incurable jury argument is, however, rare.” Id. Examples include comparisons to Nazi atrocities (Id.), accusations of racial or gender discrimination (Alonso v. John, 689 S.W.3d 911, 913 (Tex. 2024)), and allegations of witness tampering. See Living Ctrs., 256 S.W.3d at 681.
So, according to Texas case law, when you’re trying these car accident cases, you can’t just haul off and argue whatever comes to mind—not that you would want to anyway. In fact, doing so could create reversible error that warrants a new trial—and no one wants to lose a verdict.
Carefully craft your closing argument to be not only persuasive, but within the boundaries of the law.
James Trial Law Firm’s personal injury attorneys have handled many cases involving injuries suffered in car wrecks. These types of cases require experienced lawyers willing to fight to hold those responsible accountable—call us now at 281.339.7349 to schedule a free case evaluation.