Lawyers like their clients – really, they do. But they can’t vouch for them.
Let me explain what that means: “vouching” is, for us members of the bar, both a technical term and a no-no. When it’s done at the trial of an executive employment dispute, it can unfairly prejudice the jury – and, ultimately, the “vouched-for” side can have its victory overturned by an appellate court. We’ll see how this happened in the case of one Mindy Gilster.
But first, more on “vouching.” In law, it means essentially what non-lawyers think it means: to give a personal assurance of the credibility or truth of something. All of us use this in our daily lives: “I know you’ll love that restaurant;” “trust me, you’re making the right decision;” and so on. Lawyers, though, can’t “vouch” for their clients or for a witnesses’ credibility. Not only is it considered a bad practice, but the Rules of Professional Conduct in most states forbid us from “assert[ing] personal knowledge of facts in issue…or stat[ing] a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant…” Put another way, lawyers need to build arguments from the facts that are actually entered into evidence, and not on what they personally think the facts should be. Vouching comes up most often in criminal cases – but, as in the case of our subject today, it can surface in civil litigation over employment disputes.
Which brings us to Mindy Gilster of Sioux City, Iowa, who for several years was employed by Primebank as a credit administrator. According to Gilster, her boss – the bank branch president – sexually harassed her: making comments about her clothes, answering Gilster’s question about a possible bonus with an innuendo, and pressing up against her in the breakroom, among other things. Gilster filed an internal complaint for sexual harassment after a year of this behavior, and her boss was reprimanded for his conduct. But Gilster’s employment relationship continued to go downhill, and after she filed suit against her boss and Primebank a year later, her performance reviews turned negative and she was fired. Gilster amended her complaint to include retaliation, and the case proceeded to trial in federal court in Iowa.
The trial turned – as they often do – on Gilster’s credibility and that of her testifying co-workers. At the end of the case, Gilster’s attorney gave a rebuttal closing argument in which she used her own experience as an alleged victim of sexual harassment in law school to support Gilster:
Mindy Gilster had the strength to make [her complaint] back on July 2, 2009. I sure didn’t. Back in 2006 I was sexually harassed by a professor…but I was on my way out, I was a third-year law student…and I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor…
Gilster’s lawyer also argued that she was giving the jury “the power and responsibility for correcting injustices…” and it took her seriously, returning a $900,000 verdict in Gilster’s favor – $600,000 of which was punitive. Primebank moved to set aside the verdict based on Gilster’s lawyer’s vouching; when the trial court denied that motion, it appealed.
The Eighth Circuit reversed Gilster’s win, and sent the case back for a new trial. The court used three factors to reach its conclusion. First, it held that the attorney’s remarks – which formed the basis of her rebuttal argument – couldn’t be overlooked as “minor aberrations made in passing.” Second, the court held it was significant that the trial court declined to do anything about the vouching – and, indeed, had overruled Primebank’s objection. Third, it held that the size of the verdict, and the large punitive part of it, suggested that Gilster’s lawyer’s vouching had a prejudicial effect on the jury. Concluding that the vouching was “plainly unwarranted and clearly injurious,” the only fair result, the court held, was a new trial.
So the next time your trial lawyer – assuming you ever need one – doesn’t make a closing argument vouching for how great you are, and what an injustice it would be for the jury to rule against you, don’t take it personally. It’s because doing so would be beyond the limits of our job.