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Pollard v. Hunt11/10/2005
s; Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 40, 543 N.E.2d 464. Thus, the determination of whether remarks made during closing argument exceeded the bounds of permissible argument is a discretionary function to be performed, in the first instance, by the trial court. Pang, supra, at paragraph three of the syllabus. The trial court's determination is reviewed for an abuse of discretion. Id.
{ } However, " here gross and abusive conduct occurs, the trial court is bound, sua sponte, to correct the prejudicial effect of counsel's misconduct." Pesek, 87 Ohio St.3d at 501 (emphasis omitted) (quoting Snyder, 15 Ohio St.2d at 37). If "there is room for doubt, whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party." Id. at 502 (quoting Warder, Bushnell & Glessner Co. v. Jacobs (1898), 58 Ohio St. 77, 85, 50 N.E. 97).
{ } First, the Pollards argue that OBLIC's counsel improperly implied that Hunt had a financial interest in the outcome of the trial, despite the fact that the evidence indicated that the settlement eliminated Hunt's financial interest in the litigation. OBLIC's counsel argued:
{ } "The first thing I want to talk to you about is the discussion that we've had in this courtroom. You remember Mr. Hunt when he was on the stand, he was asked a question by other counsel whether he had any financial interest in this case and he said no. Well, that was partially true. Just think about it now because I'm going to take you through this.
{ } "That was a half truth; * After he said that he didn't have a financial interest, he cut a deal with the Pollards to get out the case, out of the case in which he and his firm were the defendants so that they [the Pollards] could prosecute this case.
{ } "What did he get out of the deal? Number one, he has a financial interest and there's no question about it.
{ } " *
{ } "Let's go back and talk about that. Go back and talk about who actually has an interest in this case. Who has an interest to get out of a jam? And he was in a jam. *"
{ } Upon review, we agree with OBLIC that its counsel's suggestions that Hunt's financial interest in the litigation might have affected his credibility was proper. Although Hunt initially testified that he had no financial stake in the outcome of the litigation, he subsequently acknowledged on re-cross examination that he had been exposed financially prior to signing the agreement. Thus, OBLIC cannot be faulted for calling Hunt's initial testimony a "half-truth" and pointing out that Hunt had had a financial interest, which was eliminated by the settlement.
{ } OBLIC argues that "Hunt's convenient and sudden recollections about making a phone call during the time at issue surfaced after the settlement, which released Hunt as a part-defendant. * Hence, a 'reasonable inference' could be made that Hunt's memories were mistaken and/or influenced by his financial interest in being dismissed from a malpractice lawsuit." Although the Pollards certainly could have argued that the settlement removed any bias due to a financial interest on Hunt's part, it was not unreasonable for OBLIC to assert that Hunt's memory could have been affected by a desire to enter into the settlement. It is at least arguable that his recollections regarding oral notice might have been affected by his desire to enter into a realizable settlement.
{ } Second, the Pollards contest OBLIC's counsel's reference to the Pollards' wanting to "jive and dance" and his statement that "somebody should not be allowed to pawn s
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