Trial Court Required to Take Remedial Action if Objection to Improper Closing Argument is Sustained.

The Supreme Court recently held that once an objection to improper argument has been sustained in a civil case, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety even absent a specific request for such a measure; overruling Garner v. Victory Express, Inc., 264 Ga. 171 (1994), Dascombe v. Hanley, 270 Ga.App. 355 (2004), and Strickland v. Stubbs, 218 Ga.App. 279 (1995). In Stolte v. Fagan, ___ Ga. ____ (WL 3888219) (September 10, 2012), Stolte and her husband sued her dentist and his practice for malpractice claiming that Fagan negligently severed a nerve during a wisdom tooth extraction. The trial court returned a defense verdict. On appeal, Stolte argued that defense counsel improperly encouraged the jury in closing arguments to consider the impact of the claims on Fagan’s professional reputation. Once Stolte’s counsel properly objected, the trial court, as the Supreme Court held, “assumed an independent duty to take some remedial action—a curative instruction or rebuke of counsel, for example—without any additional requests from Stolte’s counsel.” The Court reversed the trial court and Court of Appeals on this issue and remanded regarding another issue related to juror qualifications.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

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