Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Sledd v. Reed, 246 Kan. 112, 785 P.2d 694 (1990).


  1. Is it an error for defense counsel, in closing arguments, to argue the adverse effects of a finding of liability may have on a community?

  2. When, if ever, do improper arguments in closing mandate a new trial?

This is a medical malpractice case that took an improper turn during closing arguments. Id. at 112. The court found that comments made by the Defendant were highly improper, as they failed to deal with the issue of the lawsuit and instead targeted the fears, passions, and prejudices of the jurors. Id. at 117. However, the statements were not so inflammatory as to warrant a new trial. Id. These remarks did not deprive Plaintiff of a fair trial because Plaintiff could not show that there was a “likelihood that the improper remarks changed the result of the trial.” Id.

Plaintiff suffered a fall from a tree, resulting in a fractured vertebra. Id. at 112. Despite the fracture, Plaintiff retained feeling in his extremities and all motor skills, as his spinal cord had not been damaged. Id. Plaintiff’s doctor contacted the Defendant, a specialist, to determine if surgery was necessary. Id. at 113. Defendant recommended and performed the surgery on Plaintiff. Id. Following the surgery, Plaintiff developed a blood clot which damaged his spinal cord and ultimately resulted in the loss of the use of his legs. Id.

During closing arguments, defense counsel made comments concerning the limited number of surgeons in the community who dealt with spinal injuries such as the one Plaintiff had suffered. Id. at 114. Defendant went one step further, stating: “This case I’m sure points out to you the reason why only a few do [these cases] and only a few answer those kinds of calls…if we hold Dr. Reed responsible…no one will answer these calls.” Id. The Plaintiff objected to this argument, but the trial court allowed it and declined to admonish the Defendant nor grant a new trial. Id.

The court made quick work of Defendant’s arguments that Plaintiff had not preserved the argument for appeal, finding Plaintiff’s objection sufficient and timely. Id. at 116. The court additionally made a quick and easy finding that the remarks were “inappropriate [and] had no bearing upon the issues before the jury.” Id. at 117. The court should have, at the very least, admonished the lawyer for making such remarks. Id. Such remarks were clearly used to “inflame the passions or prejudices of the jury” and were improper “predictions of the consequences of the jury’s verdict.” Id. at 116.

The harder question, however, was whether these inappropriate remarks justified a new trial. Id. at 117. Only when remarks made in closing deprive the opposing party of a fair trial will the court grant a new trial. Id. Here, there was not a sufficient showing that the improper remarks had likely changed the result. Id. Instead, the jury had been presented with lots of testimony that supported its verdict. Id. Further, the court had instructed the jury that opening and closing arguments were not evidence. Id. Thus, the court allowed the jury’s verdict to stand despite the in appropriate remarks made during closing argument. Id. at 118.