Appellate Decision of the Month - "Message Received!"

The Recent 101 Ocean Blvd v. Foy Decision

In 101 Ocean Blvd v. Foy, decided on March 19, 2021, the New Hampshire Supreme Court addressed a frequently recurring appellate issue: An attorney that made an improper “send a message” argument to the jury. The lawyer handling the suit against the insurance company argued: “You, as a jury, … can change the way insurance policies are sold…. Use your voice and tell the insurance industry not to sell these policies under the name of replacement costs if they have co-insurance in them.”

It's a Tempting Argument, but ...

It’s only natural for lawyers and litigants to want to characterize a case as something much bigger than a private dispute or a question of one person’s guilt or innocence. It makes the case sound more important, more compelling. It’s probably among the oldest forms of oratory – this isn’t about one person or one company, this is about something bigger than all of us.

But it’s not allowed. Decision after decision consistently hold that “send a message” arguments improperly appeal to the passions, prejudice, and sympathy of the jury. We have to restrict our arguments to the case at hand. It's also a bad strategy to make the argument, because it will probably cause the judge to instruct the jury that they aren't allowed to consider the impact of their decision on "big picture" issues. Thus, the jury will be ordered to stop thinking about something that they surely would have considered on their own. Again, its only natural to think about the larger ramifications of any given decision.

Are these Winning Arguments on Appeal?

As was the case in Foy, these arguments usually don’t rise to the level of reversible error, even if there is a contemporaneous objection. In other words: Judges don't condone these arguments. Judges will sustain objections to these arguments. But these types of arguments don't necessarily result in the granting of a new trial.

But a new trial will be ordered if the argument that tries to make the case about something bigger than a private dispute also offends other fundamental principles of the justice system. Probably the best-known example, Leblanc v. Honda, reversed a products liability verdict against a Japanese car company because the plaintiff’s lawyer’s arguments stirred up feelings of zenophobia and racial hatred among the jurors. In that case, it was the NHSCt that chose to “send a message” – reversing the multi-million dollar judgment and ordering a new trial.

Learn More about Appellate Litigation

Foy wasn’t our case. But together we have handled well over a hundred civil and criminal appeals in the NHSCt, the 1st Circuit, and the USSCt. Read about our appellate work here and our appellate victories here.