Sample Closing Argument

We’re going to be putting into evidence, that the odometer
statement was simply drafted off the odometer reading on the
car. And Mr. Powell, of course, as I’ve indicated, received the
car showing higher miles. Mr. Benigno didn’t ask Mr. Powell,
‘‘Are the miles right?’’ They didn’t sit around and discuss this
point.
So we’re going to be putting in evidence that the very best,
even from Mr. Benigno’s point of view, even from Hilltop’s
point of view, the very best they can say is that they closed
their eyes to a thousand indications that what they were get−
ting was a rolled back or wrecked car or heaven only knows
what, and they turned around and covered it up. And that’s
the nature of the business, of an industry, and it takes dealers
like Hilltop to support that industry.
Now, the damages that we’re going to be putting in evi−
dence about, as I mentioned, the Delongs bought the car for
thirteen thousand dollars. And they had finance charges of a
thousand dollars approximately, and they had taxes, and they
had all kinds of problems running around. They resold the car
for eleven thousand three hundred dollars. But that was, of
course, before they knew about the rollback.
Now, the judge will be instructing you at the close of the
case as to how you calculate what their loss is. And the instruc−
tions, we’ll be putting in evidence that the car actually at the
time that they bought it was not worth thirteen thousand dol−
lars. It was worthless, being from an auction. But it was worth
a whole lot less when you knew it had been tampered with and
had a rolled back odometer. That difference in value from
thirteen thousand dollars down to perhaps half that value,
eight thousand, seven thousand, with a rolled back odometer,
what was that car was worth.
We’re going to be putting in evidence that with a rolled
back odometer and coming from an auction, that car was worth
a whole heck of a lot less than the Delongs paid for it. That’s
going to be what the Delongs actual damages are, what I will
ask you to award or compensate them for their loss, in addi−
tion to the other incidental charges, their time, the finance
charges, this kind of thing.
But again, there’s a different issue in this case that is much
broader. That is the question of punitive damages. Now, puni−
tive damages we’ll be asking for. And they are to punish. They
are for three basic purposes. To punish, to deter this person,
any one of these people from doing this kind of conduct again,
and third, to deter other people.
And we’re going to put into evidence that we think will
show you that in order to punish an appropriate amount, it
would take something substantial, because there’s so much
profit involved. Second, in order to deter any one of these
dealers who can, as a business practice, make so much money,
it’s going to take a lot of money to deter. And third, it would
take an awful lot of money to deter other people in this indus−
try, this industry−wide problem, to do something about this
practice. So ultimately we are going to ask for substantial pu−
nitive damages to punish, deter these defendants, and to deter
other defendants. Thank you.
G.3 Sample Closing Argument3
MR. BROWN: May it please the Court, ladies and gentle−
men of the jury, we appreciate your patience and tolerance as
this process bumps and grinds along and we trot up to the
sidebar. It’s a privilege for me to have an opportunity to ad−
dress you on a case especially of this kind. And we trust that
the privilege of being on a jury is something that perhaps sets
off the pain of going through a week of waiting around.
I have first a couple of housekeeping things, little practical
things that I want to explain about how this all works.
First of all, remember, this is not a criminal case. In a crim−
inal case, you would be familiar with the idea that one has to
prove guilt beyond a reasonable doubt. Make sure you under−
stand that the instructions show you all the plaintiffs have to
do is cause you to believe the facts, as they say them, to be
true. That’s not proof beyond a reasonable doubt.
If you think as if there were a balance scale, if there were
questions where you’re trying to decide who was correct, as
long as the plaintiffs have more evidence in their side of the
balance scale, as long as it tips and your belief is stronger on
one side than the other, that is sufficient. So you don’t have to
worry about finding guilt beyond a reasonable doubt.
Now, a second thing. The exhibits, we’ve not yet passed
them to you. You can ask for the exhibits. I’m going to be
referring to them here. But you can ask for the exhibits when
you go to the jury room. And I would encourage you to do
that. If you have any doubts about anything, have the exhibits
in front of you. You’ll be able to look over whatever you want.
Some of the exhibits might take a little bit of study. We refer
to them.
But, for example, the records fromMcCullagh Leasing, show−
ing checks and amounts and dates. Vehicle identification num−
bers. Compared with the sales invoices, you might have to look
at them a little bit to see clearly for yourself.
Now, one other thing, when you go to the jury room, you
don’t have to leave your common sense here. As representa−
tive members of the public trusted with the position of being
jurors, you can take your own concepts, your own sense, your
own insights with you into the jury room. All of your experi−
ence, all of your background, you can use that. You don’t have
to go in there and act as though you have no background at
all. Your collective experience is what helps you to be jurors.
Don’t leave your common sense back here.
About reading the instructions, I will go through the instruc−
tions a little bit later on. They go quite awhile. You’ll want to
take your time and look at them fairly carefully. It may take
you awhile to read them. But you will find that they do break
down to be pretty simple.
For example, the instructions that the Judge has just read to
you, this is what it takes for the plaintiffs to prove fraud against
3 This closing statement to the jury in a trial for violation of
the federal Odometer Act and related claims is intended
solely for purposes of demonstration. The statements are
adapted from Delong v. Hilltop Lincoln−Mercury, Inc., No.
552408 (Cir. Ct. Cty. of St. Louis, Mo., 1989), a successful
case for the plaintiffs argued by Bernard F. Brown, an attor−
ney in Kansas City, Missouri. The appeal is reprinted at 812
S.W.2d 834 (Mo. Ct. App. 1991).
Sample Jury Trial Documents Appx. G.3
351
Hilltop. There’s another instruction immediately following it
saying the plaintiffs have to prove all of those things in order
to find against Hilltop. You’ll find repetitions like that. It’s two
very similar instructions. You’ll see this throughout the jury
instructions.
Take your time to wade through them, and I suggest you’ll
find that they are fairly straightforward, that they are often
saying very much the same thing. The plaintiffs have to prove
their case, and the defense wins if the plaintiffs haven’t proven
their case. You’ll find that pattern throughout the instructions.
When I started in the opening statement, I used the analogy
of looking through a porthole. And we hope that we’ve helped
you look through a porthole. And we hope that it’s become a
little clearer why we’re talking about it as if you’re looking
through a porthole. You undoubtedly didn’t know what you
now know about the industry, and about this kind of opera−
tion.
We submit to you that the evidence has shown that the
defendants here have attempted in every way, as a matter of
practice, as a matter of industry norm, to cover up the port−
hole to the general public, to keep most people from seeing
through the porthole.
They cover it up with things like federal odometer state−
ments. They cover it up with concealment, misrepresentations
about where the cars come from, to keep you from finding out
about the history of a car.
Our case has been about getting these things that may be
common knowledge somewhere else in front of you. And we
hope that you now have enough of a glimpse through the
porthole that you have a good idea of a whole lot of other
things beyondÐthat you still haven’t seen specifically, but enough
insight that you can see beyond and you can see past the con−
cealment.
The case has several ways in which it’s one side or the other.
The position of the defendants is, oh, there’s no such thing as
a bad reputation for Western Kentucky cars. Well, that’s pretty
radically different; that’s totally different from what the plain−
tiffs’ witnesses are saying. It’s even totally different from what
Mr. Powell was admitting, one of the defendants.
But there are several ways you’ll see from the evidence that
it’s one way or the other. And you are really forced to confront
the question, ‘‘Well, which side do I believe?’’ There isn’t much
of a middle ground.
Either you find people like Mr. Benigno credible, when he
says, ‘‘Oh, no, the reputation was great. It’s perfect.’’ He didn’t
say, ‘‘Well, yes, there were some problem cars every now and
then.’’ He says it was practically perfect.
And the alternative is, it was so bad that some dealers wouldn’t
go, and law enforcement people heard all about it. And fifty
percent of the cars were rolled back at the auctions or from
Western Kentucky.
Now, you look at that, and I submit to you that there isn’t
an in−between. It must be one or the other. The distinction is
so far gone that we submit that when the defendants take the
position that there was no reputation at all, then that’s false.
That they know it’s false. That it’s actuallyÐand their extreme
position helps show you what they are hiding from how bad it
really was.
Specifically, let me go back through the particular evidence
on particular claims. Now, the plaintiffs have two claims against
each defendant. A claim called fraudulent misrepresentation
and a claim called violation of federal odometer law. They are
very similar. And I’ll mention to you now, that there are two
different theories, reasons why the plaintiffs could recover against
each defendant, but that plaintiffs will not get damagesÐ
actual damages twice against any one defendant.
If you find in favor of the plaintiffs against Hilltop on fraud
and on federal odometer law, which we submit is practically
the same thing, the plaintiffs will end upÐlater on, after your
verdict is over with, the plaintiffs will have to choose one or
the other. So there won’t be an overlap. There won’t be two
recoveries against any one defendant. You needn’t worry about
that.
Let’s go back to the basics here of some of the more obvi−
ous things.Mr. Powell. The plaintiffs have claimed fraud against
Mr. Powell. The plaintiffs claimed that Mr. Powell represented
the miles on this vehicle were correct when he sold them at
the auction. And that he either knewÐas the instruction says,
he either knew that the miles were false, or he did not know
whether they were true or false.
If you concluded, as we think you should, that of course he
either actually knew it for a fact, or at the very best, he did not
know whether the miles were right. If you conclude that, then
we submit that everything else falls into place. He made a
representation, as the instruction will tell you, that was mate−
rial. It was important. It was false, he knew it was false or did
not know whether it was true or false. It’s a fairly straightfor−
ward proposition when you get to that point. Do you find that
he either knew it was false or did not know if it was true or
false.
In fact, we all know it was false, we all know the miles were
rolled back. There isn’t anything left. So it’s a pretty simple
claim against Powell.
You heard him say, ‘‘I didn’t know the miles were wrong. I
wasn’t standing there when they rolled it back.’’ Well, this is
perhaps the reason why the jury instructions don’t make youÐ
you don’t have to conclude that Mr. Powell knew that the
miles were false. It’s sufficient if he didn’t know whether they
were true or false.
But he said, ‘‘Yes, I know they are true.’’ That’s fraudulent
misrepresentation right there.
Now, I don’t think I’ll spend too much time rehashing the
evidence that shows Mr. Powell handled this rolled back car
and, in fact, knew. The vehicle was bought in the name of
Powell’s Cars. All the money came from his bank account. The
money for the sale went into his bank account.
And then, of course, the fact of the matter is, when you look
through these additional documents that we just introduced
today, there are two other rollbacks. There were four cars he
bought on this one day. And we’ve got documents that these
other two cars were sold, one of them was sold on the same
day as the Delongs’. The other was sold the week before. They
were all rolled back. I believe the mileage rollbacks, if you
look at them, are on the order of forty thousand miles. A
pretty standard number. And if you look through the numbers,
you’ll see he’s making about the same profit on each one.
$850, around in there. The fourth car, we don’t have docu−
ments on.
Appx. G.3 Automobile Fraud
352
It’s obvious. His pattern and practice is perfectly clear. And
you needn’tÐthere isn’t much of anything to stumble over
about this. If it looks obvious, that’s exactly what it is.
I’ll say just one last thing. I think it probably captures it all.
Mr. Powell’s statement, something to the effect of, ‘‘I didn’t do
it, and this is the first time I’ve been caught.’’
We take the position that it’s obvious it was a fraudulent
misrepresentation of mileage at the auction. And you will find
when you look at the instructions that that’s also a breach of
federal odometer law.
About Mr. Benigno and Hilltop. Let’s go over again some
of the basics here. There is pretty much a split in the testimony
between the Delongs and Mr. McGoogan. We start there.
Now, remember, too, the fraud claim against Hilltop in−
cludes not just that they made a representation of mileage that
they either knew was false or didn’t know whether it was true
or false. But also that they made representations that the car
was a locally owned trade−in, or that the car was not an auc−
tion car. Any of those representations is a basis for fraud. And
you’ll see the jury instruction says if you find that Hilltop said
it was a trade−in, or they said it was not an auction car, or they
said the miles were correct, and if they didn’t know whether it
was true or false, that’s sufficient for fraud.
So there’s not just one reason for fraud, not one particular
ground for fraud against Hilltop. There are three. The miles
was wrong, that they said it was a locally owned trade−in, and
that it was not an auction car.
All right. Mr. McGoogan, while he waffled, obviously his
position was, oh, no, he hadn’t specifically told them that it
was not an auction car. You may recallÐactually, I suppose his
testimony was probably the best example you could give of
what the Delongs were dealing with. We submit to you that
Mr. McGoogan was actually waffling a great deal, stumbled
very hard when he was trying to answer some of these ques−
tions. And, in fact, admitted quite a bit at some points about,
well, he may have.
His formal position was, ‘‘No, I didn’t tell them this. They
didn’t ask me any more about it. When they bought the car, I
didn’t tell them it wasn’t an auction car.’’ But his position
when we went on with the testimony was, he very possibly said
something to the effect that it was a trade−in.
So let’s go a step further with Mr. McGoogan. I read you
his deposition testimony, hopefully not too tediously. In his
testimony there were some confirming remarks. It came across
that he usually represented a car as being a trade−in car. And
he may have offered some excuses, like, well, maybe he thought
they were trade−in cars. But the fact of the matter is that Mr.
McGoogan’s testimony, while he starts out denying everything,
it ends up being that he was pretty much acknowledging a
pattern, a standard practice of misrepresenting the cars. And
that the Delongs’ car was only one example.
Cars come rolling in on Fridays. Mr. McGoogan sells them
as trade−ins on Saturdays. Go through some other particular
backup representations. Now what about this Mr. McGoogan,
the conversation about the engine being clean? Mr. McGoo−
gan offered the suggestion that sophisticated St. Louis folk,
not like Jeff City folk, may dealer−prep their cars. It was called
to his attention. It was pointed out to him.
Even if you were to try to give him the benefit of the doubt
and say, well, he didn’t know specifically it was an auction car,
what did he think when it was dealer prepped? He thought it
was a trade? No, of course not. Mr. McGoogan, everything
points toÐthe circumstances point back that he knew per−
fectly well it was an auction car.
That’s a particular circumstance that shows he would have
known it was a dealer car. He would have known perfectly well
he was lying when he said it was a trade−in car.
There are other things that are real misrepresentations that
were made. All of this is part of a concealment. Mr. McGoo−
gan saidÐlet’s see,Ðhow bad were the problems with the car?
How bad were the problems? Mr.McGoogan said at one point,
insignificant? Insignificant? This car had real problems. Again,
Mr. McGoogan has every reason toÐevery motive to cover up
how bad the problems were.
How much would it take to fix that computer? How much
would it take to fix that car dying? The defendant’s own testi−
mony, the testimony that they brought in, shows you it was a
bad problem.
So he’s covering up where the car came from. Actually lying
about it. He’s cutting off the opportunity of the Delongs to
find out for themselves just how sordid the history of the car
is. He’s covering it up by saying the car wasn’t dealer−prepped
by anybody but a local owner. He’s cutting it off by saying
there are not real problems with the car. The car is okay. It’s
simple.
Anything to move the car off the lot. Anything to get a
buck. It boils down to, can you make money by passing it on?
Yeah, you can make money. If you want to lie, if you’ve got a
position where people would trust you and they will take your
word for it, then you can make a buck real fast. That’s what we
submit Mr. McGoogan was doing, pure and simple.
And it wasn’t just Mr. McGoogan. Did Sal Benigno super−
vise this man and not have any idea what was going on? Did
Sal Benigno supervise Mr. Barnes and not have any idea that
he likewise was, apparently as a matter of practice, saying cars
were trade−in cars?
Again, you don’t have to leave your common sense behind.
These folks were family. If nothing else has been shown, Hill−
top has shown themselves as being a fairly tightknit family,
haven’t they? They worked quite well among themselves. They
all come in and back each other up. They all knew what was
going on.
Mr. Benigno supervised these people. They were part and
parcel of the same deal. Don’t tell us, and don’t let them tell
you that Mr. Benigno was ignorant of what Mr. McGoogan
was doing and that Mr. McGoogan didn’t know that he was
handling auction car after auction car with false representa−
tions to move them along.
Now, obviously a lot of this case gets to a broader question
of an industry. And that is something that you’ve heard quite a
bit of specific testimony about, about what the reputation was,
about traveling cutters in Western Kentucky, and things like
this.
But remember you’ve only seen the tip of the iceberg. And
your reasoning can tell you that for every one of these specific
facts you’ve seen that indicates something out there, one rock’s
been turned over. It can lead you to see that there is a whole
lot more than has been shown to you so far.
For example, these folks, Mr. Benigno, pretends he goes to
the auction, and the reputation is clean. Now, we’ve got peo−
Sample Jury Trial Documents Appx. G.3
353
ple saying the reputation is anything but, but he goes to the
auction, and he doesn’t ask anything about the car. Nothing.
Now, we submit that that fact says a whole lot to you. Think
about what that means. To use an old tried and true question,
‘‘Would you buy a used car from this man?’’ Mr. Powell? Not
to pour any particular abuse on Mr. Powell. But practically
speaking, would you go to an auction with a guy like Mr. Pow−
ell representing the car, not ask a question, say yes, I mean,
‘‘I’ll buy his car, I believe every word he tells me, that the miles
are right.’’
In fact, most people probably would choose a dealer they
would go to pretty carefully in the first place in this town. And
then a lot of people say, ‘‘I want a mechanic to check this car
out. I want to know something about it.’’ That’s an individual.
Would an expert, a dealer like Mr. Benigno with thirty years
in the business, go to the auction, not ask a question, not do
any checking. Not check out reputation. He doesn’t buy repu−
tation, he told you. And just take that car and believe what
he’s told? We submit to you that if a dealer takes a position
that he does that, he’s got his choice. He’s either a fool, or he’s
up to something very obvious. Well, we submit it’s obvious
what he was up to.
This leads to the conclusion, they are making money. They
are there because they can buy cheap and sell high. And that’s
exactly what they did with this car. And this is exactly what
they did as a standard policy.
Thirty−five hundred dollars difference in selling price be−
tween when the car was sold at auction and the car was sold to
the DeLongs. The car was sold at auction for ninety−five hun−
dred dollars, and the car was sold to the Delongs for thirteen
thousand dollars. Thirty−five hundred dollars difference over−
night. Buy on Friday for ninety−five hundred. Sell on Saturday
for thirteen thousand.
The motivation is overwhelming. It’s pretty darn easy to see
why this game would be played. And it’s pretty easy to see why
he would be satisfied if he got a federal odometer statement.
And then one other major thing. Nobody would ever find
out. Nobody would ever find out. And if nobody figures it out,
where are they? A consumer buys a car and has problem after
problem with this car, they never know that it’s rolled back.
The Delongs never found out until there was a tip given to
them, an attorney who was familiar with this industry said,
‘‘Hey, check it out. This is a Kentucky car at an auction? You
better check the mileage.’’ Sure enough.
Most people, even after they consulted an attorney, wouldn’t
have known to check the mileage. The industry works so well.
Let’s go through a couple of other singular things about the
practices of Mr. Benigno and Mr. McGoogan, compare them
with what an honest dealer did when the Delongs went to
another dealership and were looking at a car and asked, ‘‘well,
now, is this a trade−in car?’’ No. They were told it was a dealer
car. There are honest dealers out there, happily. That’s a big
difference between what was going on in this caseÐexactly the
difference. That is exactly why this car ended up being in the
Delongs’ hands.
Now, let’s go through another example, again comparing
Benigno. How did the Delongs buy a car? You know, I think
it’s fair to say the Delongs did everything right. The Delongs,
to buy a car, they started asking questions of somebody who
knows the business. ‘‘Now, you know the business, what should
I do, where should I look for a car?’’ ‘‘Don’t get an auction
car. don’t get one of those dealer cars. Stay away from those
things.’’
They checked. They went to dealers that appeared to them
to be reputable. First they asked around and found out about
the business, educated themselves.
Second, they go to apparently reputable dealers that they
have no reason to believe would have anything other than
trade−in cars.
Third, they ask when they are looking at the cars.
Fourth, they do ask about the problems, and they are specif−
ically told the miles are okay.
Every single one of those things is totally different from
what Mr. Benigno, an expert in the business, did. And they are
individuals. It’s his business to know. It is Hilltop’s business to
know. They know people trust them. They know people think
they have trade−in cars there. It’s their business.
You’ve heard the testimony from the trooper, who wasn’t
just talking about some isolated instances, obviously. He also
talked about his fellow troopers working on this problem. It
paints a picture of law enforcement being kind of over−
whelmed, and not being about to stem this tide.
Well, that makes sense; they have people in Kentucky with
operations with traveling odometer cutters returning around
flooding the market with cars. Law enforcement in our coun−
try has plenty to do. They have drug problems to deal with.
They have armed robberies to deal with. They have murder,
rape, and every kind of heinous crime to deal with. They can’t
stop all of this.
What you heard from the trooper was a frustrating, limited
glimpse of our good people in law enforcement being unable
to do very much at all. He knew perfectly well what was going
on. Obviously it didn’t stop this problem.
Okay. I’m going to go through the instructions a little bit,
with a little bit more particularity. Remember that in the in−
struction on fraud against Hilltop, it starts out by saying, you’ll
find in favor of the plaintiffs and against Hilltop if you believeÐ
there are three representations mentioned. If you believe that
they represented it was a locally owned trade−in car. Or if you
believe that they represented it was not an auction car. Or if
you believe that they represented the miles to be correct. If
you believe any of those things and you believe that they ei−
ther knew that that representation was false, or didn’t know
whether it was true or false, that leads to a conclusion in this
case, and everything else will fall in place for you. That’s fraud.
That’s sufficient for you to come to the conclusion on fraud.
With respect to Mr. Benigno, and with respect to Mr. Pow−
ell, it’s only a question of mileage. The question is whether
you believe they represented the miles to be correct, and they
knew it was false or didn’t know whether it was true or false.
The federal odometer claim instructions use slightly differ−
ent language. They refer to whether the defendant has a quote−
unquote, ‘‘specific intent to deceive or cheat.’’ Called an intent
to defraud. We submit to you, for practical purposes, this same
evidence leads to the very same conclusion. Violating the fed−
eral odometer law is another way, it’s another remedy for the
same kind of conduct. There’s a federal statute, a federal law
that is so concerned about the milage problems. You’ll find
the same kind of evidence will lead you to the same conclu−
sion.
Appx. G.3 Automobile Fraud
354
There are no tricks. These instructions are not written to
beÐdon’t look for hidden tricks. It’s not the way they are
done. Sometimes jurors might think, ‘‘Well, I’m getting a hint
there.’’ No, just read them as they are. Put common English to
them. That’s the way they are supposed to be.
THE COURT: You have three minutes, Mr. Brown.
Mr. BROWN: In filling out the verdict forms, there’s a place
to write the plaintiffs’ name. It’s kind of cramped. There’s a
place for both names. It’s cramped. Sometimes there can even
be questions about filling it out, if you find in favor of the
plaintiffs, you would write out both of their names in the blank
where it says plaintiffs.
And here’s another important thing. The actual damages.
The actual damages that the plaintiffs are seeking, that’s de−
fined in the instruction very specifically. And it would be the
same for all of them. It might be a little worse for Hilltop. But
recognize the actual damages anywhere should be pretty much
the same. And that is the difference in value of the car on the
day it was bought as it was represented,Ðit was represented to
be a pretty much wonderful car, of courseÐand what was it
actually worth the day it was sold? The plaintiffs bought the
car for thirteen thousand. Their evidence is the car was worth
perhaps half that with a rolled back odometer.
Remember, not just inaccurate mileage, but it was a car that
had been tampered with. If you tried to sell that car and told
the truth, at fair market, perhaps half. That’s the plaintiffs’
suggestion as to what their actual damages were.
But there’s a much bigger issue in this case. And this is what
we’re doing here today. And that’s what makes this case worth
six years of toil and trouble. Punitive damages.
The punitive damages instruction asks, was the conduct of
the defendants outrageous? Did they exercise reckless disre−
gard for the rights of others? If you reach the conclusion that
their conduct was that way, then you give punitive damages for
three reasons; to punish a defendant, to deter the same defen−
dant from doing it again, and to deter others from doing it.
In this case, a quick calculation gives you an idea what’s
going on. Hilltop was making thirty−five hundred dollars on a
car. Fifteen cars a month, Mr. Benigno talked about. What
kind of profit were they making? Fifteen times three thousand
a month. Forty−five thousand a month profit.
We submit that you should consider the figure against Hill−
top, for example, forty−five thousand a month profit times twelve
months. Take one year’s profit alone, just one year’s profit
from them. Something like that is the kind of figure we have in
mind.
Now, remember that they went through these calculations.
We’re making this a business proposition like they did. Remem−
ber that they don’tÐsome of us work hard and don’t earn very
much money for many years. And five thousand dollars is a lot
of money. They work with huge sums of money. Six million
dollarsÐ
THE COURT: Mr. Brown, your time in your first segment
is over.
Sample Jury Trial Documents Appx. G.3
355