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Schoon v Looby10/8/2003
me that the jury will always be able to discern misstatements or disregard inflammatory comments without direction from the judge. Although the attorneys are given leeway in final argument, it is not unfettered.
. Here, the trial court gave the attorneys wide latitude in final argument and by doing so condoned the improper comments. Schoon claims the impact of the improper comments on the jury is evidenced by the quick jury verdict. The jury returned a defense verdict in less than one hour of deliberation following five days of trial. The record reflects over one-thousand pages of testimony which included medical expert testimony from both sides.
. In rejecting Schoon's motion for a new trial, the trial court reasoned that after five days of trial, two or three statements by defense counsel would not have changed the course of the trial or caused the jurors to reach a different verdict. The proper inquiry on whether a new trial should be granted is not whether the jury would have reached a different verdict. That would be almost impossible to prove without invading the jury deliberation process. The proper inquiry is whether, under the circumstances of the case, the error produced some effect upon the verdict and harmed the substantial rights of the moving party and whether the party has been denied a fair trial.
. A review of the circumstances of this case supports a conclusion that in all probability the comments of defense counsel in final argument produced some effect upon the verdict and harmed the substantial rights of the plaintiff. The errors began when the trial court repeatedly overruled the plaintiff's objections to defense counsel's improper remarks which allowed counsel to continue with the objectionable line of argument. The jurors had no indication that it was improper and that they should disregard the comments. The trial court overruled each of the objections by stating the comments were allowed as "argument." The trial court's failure to sustain the objections or admonish counsel, in effect, condoned the comments and gave credence to the improper remarks. See Cooper v. Holscher, 60 SD 83, 243 NW 739 (SD 1932).
. Although the errors are predicated on only a portion of the defense counsel's final argument at the conclusion of a five-day trial, we nonetheless conclude that based on the circumstances of this case that the comments were prejudicial and deprived Schoons of a fair trial. We reverse the trial court and remand for a new trial.
. GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and GORS, Circuit Court Judge, concur.
. GORS, Circuit Court Judge, sitting for ZINTER, Justice, disqualified.
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