The Fifth Court ordered a rare reversal for a new trial because of improper closing argument in Clapper v. American Realty Investors. The Court summarized the improper statements as “employ[ing] nearly every type of improper argument identified by our court, including highly improper and personal attacks against opposing counsel, remarks about Clapper’s wealth, a discussion of matters not in the record, insinuations that Clapper had lower moral standards because he was from Michigan, and suggestions of Clapper’s bad motives through counsels’ opinion.”

The Court concluded: “We remind all practitioners in our court that zealous advocacy must not be obtained at the expense of incivility. As Judge Reavley aptly explained, ‘Although earnest, forceful, and devoted representation is both zealous and proper, Rambo and kamikaze lawyers lead themselves and their clients to zealous extinction.'” No. 21-10805 (March 8, 2024).

Notably, footnote two dismisses several arguments about preservation, concluding that “[t]he serious nature of the argument in this trial … indicates that substantial justice requires a new trial ….”

After rendition of a substantial judgment in a matter tried to a magistrate judge, the defendant argued that its consent to proceed before the magistrate judge was invalid, because it was unaware of an allegedly close friendship between the magistrate judge and plaintiff’s counsel at that time. The Fifth Circut held: “[W]e do not have a complete factual record,” noting a lack of information about (1) the full extent of the relationship, (2) the specific disclosures made about it–and when they were made, and (3) whether the defendant unduly delayed in raising its argument about the relationship. IFG Port Holdings LLC v. Lake Charles Harbor & Terminal District, No. 22-30398 (Sept. 21, 2023) (The importance of valid consent was also the focus of a 2021 Fifth Circuit case that reversed after a trial.)

During a tour of a “24 Hour Fitness” facility, Mr. Sauls fell into an empty hot tub and suffered severe injuries. He and his wife won a verdict for over $1.5 million in damages. But the district court granted judgment as a matter of law under Fed. R. Civ. P. 50(b) for the defendants, concluding that the hot tub was an “open and obvious” hazard.

The Fifth Circuit reversed, noting, inter alia: “Mr. Sauls is a 79-year-old man with a hearing impediment. The totality of the particular circumstances Mr. Sauls faced included no prior knowledge of the facility or the location of the hot tub, no warning as to the fact that the hot tub would be empty and located approximately five feet away from the door, and his attention was simultaneously diverted away from the hot tub by 24 Hour Fitness’ tour guide.” Sauls v. 24 Hour Fitness, No. 22-10182 (July 7, 2023) (footnotes omitted).

An issue in Novick v. Shipcom Wireless, Inc., was whether the district court erred in not letting the defendant employer open and close arguments, when it had the burden of proof on the remaining disputed issues in an overtime-pay case. The Fifth Circuit held: “Shipcom has not cited, and we have not found, any case where this court has held a trial court’s decision as to which party presents argument first to be an abuse of discretion. Many legal presentations, like the FLSA claim in this case, have a beginning, a middle, and an end. It was within the discretion of the trial court to decide that in this case the jury should hear the beginning of the story first, even though the legal effect of the beginning was not in dispute.” No. 19-20056 (Jan. 7, 2020).