In the Iowa Supreme Court
No. 24–1669
Submitted January 21, 2026—Filed April 3, 2026
Matthew McQuillen and Elizabeth McQuillen, individually and as limited co-guardians and co-conservators of Margaret G. McQuillen,
Appellees,
vs.
West Side Transport, Inc., and Clifford Charles Takes,
Appellants.
Appeal from the Iowa District Court for Linn County, Justin Lightfoot,
judge.
A semitrailer driver and his employer appeal from a jury verdict in favor of
an injured motorist. The motorist moves to dismiss the appeal on the basis of an
alleged settlement agreement. Motion to Dismiss Appeal Denied; District
Court Judgment Affirmed.
May, J., delivered the opinion of the court, in which all justices joined.
Mark E. Weinhardt (argued), Danielle M. Shelton, and Jason R. Smith of
Weinhardt & Lantz, P.C., Des Moines, and Kevin M. Reynolds and Richard J.
Kirschman of Whitfield & Eddy, PLC, Des Moines, for appellants.
Matthew G. Novak (argued) and Bradley J. Kaspar of Pickens, Barnes &
Abernathy, Cedar Rapids, and Joel T. Andreesen of Rodriguez & Associates,
Bakersfield, California, for appellees. 2
May, Justice.
Margaret McQuillen suffered great harm when her passenger vehicle
collided with a semitrailer pulled by a truck tractor. Margaret’s family (the
McQuillens) brought this suit against the truck driver and his employer, a
trucking company (the defendants). Following trial, the jury found that (1) the
defendants had been negligent but so had Margaret, (2) fault should be assigned
73% to the defendants and 27% to Margaret, and (3) Margaret’s damages were
$35,793,475. Based on these findings, the district court entered judgment in the
McQuillens’ favor for $26,129,236.80.
In this appeal, the defendants argue that errors in the closing arguments
require a new trial. The McQuillens disagree. The McQuillens have also moved
to dismiss this appeal based on an alleged settlement agreement.
We deny the McQuillens’ motion and reach the merits. But we find no
abuse of discretion in the district court’s handling of closing arguments. So we
affirm.
I. Background.
A. The Accident. It became quite foggy near Anamosa on the afternoon of
March 19, 2020. Margaret McQuillen was driving southbound on Highway 151.
There was evidence that Margaret may not have had her headlights on. There
was also evidence, which we will discuss more below, that Margaret may have
been using her phone.
Meanwhile, Clifford Takes was driving an eighteen-wheel semitrailer
northbound on Highway 151. Takes made an unprotected left turn, crossing in
front of the southbound lane, to turn off Highway 151 and onto a side street,
where he planned to park. “Unprotected” means there was no stoplight or other 3
traffic device that would stop the oncoming southbound traffic. This means that
the southbound traffic—including Margaret—had the right-of-way.
Margaret’s southbound car collided with the side of the semitrailer. This
was an “underriding” collision, which means that Margaret’s car slid underneath
the semitrailer. The car’s “greenhouse”—the roof, pillars, windshield, and side
windows—was basically sheared off.
The state patrol investigated the accident. This led to a citation against
Takes for failing to yield upon a left-hand turn. Takes pleaded guilty to the
citation.
B. Margaret’s Injuries. The collision caused extraordinary harm to
Margaret. Her breathing and pulse had stopped before the ambulance arrived.
She was finally resuscitated at the hospital, but only after prolonged CPR. A
physician said she had been medically dead. Her injuries included severe
traumatic brain injuries, lacerations, and fractures, including about one
hundred fractures to her skull. She underwent lengthy brain injury
rehabilitation. There is evidence that she will experience permanent neurological
deficiencies.
C. This Lawsuit. In 2022, Margaret’s parents brought this lawsuit against
Takes as well as West Side Transport, Inc., which employed Takes.1 The
McQuillens alleged that Takes was negligent in several ways and that his
negligence caused the accident. They also alleged that West Side was vicariously
liable for Takes’s negligence. And they asserted direct claims against West Side
based on its own alleged negligence.
1The petition also brought a products liability claim against Wabash National Corporation, the designer and manufacturer of the semitrailer. Those claims were dismissed before trial and are not relevant to our analysis. 4
West Side and Takes answered the petition. They both denied the
McQuillens’ claims. They also alleged that Margaret’s negligence contributed to
the accident.
D. Trial. Trial commenced on May 28, 2024. The jury heard seven days of
evidence. On June 7, the court read the instructions to the jury, the parties made
their closing arguments, and the case was submitted. As will be discussed more
below, there were some objections during closing arguments. There were also
some requests for mistrial, which the court denied.
Concerning the jury instructions: after much discussion with counsel, the
court ultimately concluded that only some of the McQuillens’ claims should be
submitted to the jury. For starters, the court declined to submit any of the claims
of direct negligence by West Side. This left only claims of negligence by Takes,
for which West Side would also be vicariously liable. As for these claims, the
court submitted three specifications of negligence, namely:
a. Failing to yield the right-of-way upon a left turn; or
b. Failure to maintain a proper lookout; or
c. Failure to discontinue operation of a vehicle under hazardous conditions.
As for Margaret’s alleged contributory fault, the court submitted two
specifications of negligence:
a. Driving her vehicle without having the vehicle’s headlights illuminated when fog conditions reduced visibility to 500 feet or less; or
b. Failing to maintain a proper lookout . . . .
E. The Verdict. The jury found the defendants 73% at fault and Margaret
27% at fault. The jury found Margaret suffered damages of $35,793,475, 5
including several kinds of future damages, such as future medical expenses
exceeding $10 million.
Based on this verdict, the district court entered judgment in the
McQuillens’ favor for $26,129,236.80. The defendants then unsuccessfully
moved for a new trial or for judgment notwithstanding the verdict. This appeal
follows.
II. Arguments on Appeal.
The defendants argue that we should reverse and remand for new trial for
three reasons. First, the defendants contend that the McQuillens engaged in
improper closing argument by suggesting that the jury should treat a particular
rebuttal witness as an expert. Second, the defendants complain that the
McQuillens engaged in improper closing argument by suggesting that the jury
could find the defendants negligent on grounds other than those described in
the specifications. Finally, the defendants claim that the district court wrongly
prevented them from arguing that future damages must be reduced to present
value.
The McQuillens disagree with all of these arguments. In addition, the
McQuillens claim that because the parties have settled, the appeal is moot.
III. Mootness Issue.
We start by considering the McQuillens’ mootness claim. An appeal can
become moot if any opinion we might issue would lack any “force or effect in the
underlying controversy.” State v. Hightower, 8 N.W.3d 527, 544 (Iowa 2024)
(quoting Belin v. Reynolds, 989 N.W.2d 166, 171 (Iowa 2023)). For instance, if
the parties have settled the dispute on which an appeal is based, that settlement
can leave the appeal moot. See, e.g., State ex rel. Dobbs v. Burche, 729 N.W.2d
431, 435 (Iowa 2007). In those cases, we usually won’t decide the appeal 6
(although there are exceptions). Cf. Hightower, 8 N.W.3d at 544–45 (discussing
the public-importance exception).
This is not one of those cases. The McQuillens provide several letters that
purportedly show a settlement that renders this appeal moot. We read the letters
differently. The letters only show an agreement as to how the defendants’
insurers can make payments on the McQuillens’ judgment. But the letters do
not show that the parties agreed to a complete settlement of this dispute or even
an agreement to dispose of this appeal. So we deny the McQuillens’ motion.
IV. Merits.
We now turn to the arguments raised in the defendants’ brief. As
mentioned, all of them concern the closing arguments. So we start with a brief
discussion of the law governing closing arguments. Then we address the
defendants’ specific complaints.
A. Closing Arguments in General. A closing argument is a speech in
which an attorney tries “to convince” the jury that the lawyer’s “view of the
disputed issues is correct and that it should render a verdict accordingly.”
H. Mitchell Caldwell, L. Timothy Perrin & Christopher L. Frost, The Art and
Architecture of Closing Argument, 76 Tul. L. Rev. 961, 969 (2002). Yet, in our
law-based system of justice, the jury is necessarily limited as to what grounds it
may base its verdict on. Therefore, closing arguments must also be limited so
that jurors aren’t led toward basing their verdict on improper grounds. See
Kinseth v. Weil-McLain, 913 N.W.2d 55, 73 (Iowa 2018).
In this case, the jury was properly instructed about its verdict-finding
duties and how to execute them lawfully. The jury was properly instructed to
reach its verdict “based solely on” the law reflected in the court’s instructions,
the evidence presented at trial, and the jurors’ reason and common sense. And 7
the jury was also properly instructed to “not be influenced by any personal
sympathy, bias, prejudices or emotions.”
“A proper closing argument will aid a jury in fulfilling these duties.” Tarbox
ex rel. S.K. v. Obstetric & Gynecologic Assocs. of Iowa City & Coralville, P.C.,
13 N.W.3d 546, 565 (Iowa 2024) (Christensen, C.J., concurring). Thus, a proper
argument is limited to the instructed law, “the evidence adduced from the
witnesses, the exhibits admitted into evidence, and the inferences reasonably
deductible from the testimony and exhibits.” Whittenburg v. Werner Enters. Inc.,
561 F.3d 1122, 1129 (10th Cir. 2009) (quoting Jacob Stein, Closing Arguments
§ 1:14 (2d ed. 2005)). To be sure, attorneys “are permitted some latitude,”
Olson v. BNSF Ry., 999 N.W.2d 289, 300 (Iowa 2023), and they “may draw
conclusions and argue permissible inferences which reasonably flow from the
evidence presented,” State v. Carey, 709 N.W.2d 547, 554 (Iowa 2006) (quoting
State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993)). Even so, proper argument
must remain grounded in that evidence and the instructed law.
Conversely, improper argument “may encourage the jury to stray from its
task” and base its verdict on improper factors. Tarbox ex rel. S.K., 13 N.W.3d at
565. So, for instance, it is improper to make a “melodramatic argument” that
“does not help the jury decide their case but instead taints their perception to
one focused on emotion rather than law and fact.” Rosenberger Enters., Inc. v.
Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 908 (Iowa Ct. App. 1995); see Belhak v.
Smith, 21 N.W.3d 535, 542 (Iowa 2025) (“Misconduct may arise when a lawyer
during closing argument employs ‘overinflammatory means that go outside the
record or threaten to improperly incite the passions of the jury.’ ” (quoting Carey,
709 N.W.2d at 556)); State v. Drake, 105 N.W. 54, 55 (Iowa 1905) (insisting that
counsel must “abstain from inflammatory appeals to passion and prejudice”). 8
One example is “golden rule” arguments, which improperly ask “jurors to put
themselves in the place of a party or victim,” Tibodeau v. CDI, LLC, No. 16–0560,
2017 WL 2665107, at *4 (Iowa Ct. App. June 21, 2017) (quoting State v.
Ayabarreno, No. 13–0582, 2014 WL 465761, at *4 (Iowa Ct. App. Feb. 5, 2014)),
thus suggesting that jurors should “depart from neutrality and . . . decide the
case on the basis of personal interest and bias rather than on the evidence,”
Belhak, 21 N.W.3d at 543 (quoting Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732,
741 (5th Cir. 1978)).
With all of this said, the propriety or impropriety of a particular argument
often depends on the particular circumstances of the trial, not all of which are
revealed by the transcripts that appellate courts review. Rather, the district
judge—who actually sat through the trial—is often best positioned to make those
determinations. See id. And so we afford the district court “broad discretion in
passing on propriety of” closing arguments. Moore v. Vanderloo, 386 N.W.2d 108,
116 (Iowa 1986).
Moreover, even when a zealous advocate steps over the sometimes-blurry
line between proper and improper argument, that alone does not require a
second trial. Rather, a retrial is only necessary if the improper argument was
sufficiently prejudicial that “a different result would have been probable in the
absence of misconduct.” Kinseth, 913 N.W.2d at 68 (quoting Loehr v. Mettille,
806 N.W.2d 270, 277 (Iowa 2011)). And here again, we recognize that the district
judge—who saw and heard the evidence and arguments firsthand—is generally
“in the best position” to make this determination. Belhak, 21 N.W.3d at 543. As
we said in Olson v. BNSF Railway,
As firsthand observers of the alleged misconduct—and any jury reaction elicited by it—trial courts are entitled to substantial discretion in determining whether the misconduct was prejudicial. 9
We have long recognized that trial judges’ advantageous point of view requires that their conclusions on such matters be given significant weight by reviewing courts, whose analysis is confined to words written on a page.
999 N.W.2d at 300 (citation omitted).
B. Calling Lubben an “Expert.” Now we turn to the defendants’ specific
allegations of misconduct in closing arguments. We start with the defendants’
claim that the McQuillens wrongfully referred to “an undisclosed and unqualified
lay rebuttal witness as an expert witness.” We conclude that the district court
did not abuse its discretion by rejecting this claim.
To explain why, we need to provide some additional background facts. As
mentioned, the defendants contended—and the instructions allowed the jury to
find—that Margaret was negligent for failing to maintain a proper lookout. In
particular, the defendants claimed that Margaret was distracted by her
cellphone. As support for this theory, the defendants called a digital forensics
expert, Joshua Lorencz, who had examined extracted data from Margaret’s
cellphone. Lorencz testified that “the device screen or a device button” on
Margaret’s phone had last been “manipulated 13 seconds before the collision.”
Lorencz also testified about a specific app—Snapchat. According to Lorencz, a
person named Grace Lubben had sent a Snapchat message (a “snap”) less than
a minute before the collision, and Margaret “read it” approximately “42 seconds”
before the collision. Lorencz acknowledged, though, that he “personally” was not
a user of Snapchat. Lorencz also acknowledged that he had not spoken with
Grace Lubben.
On rebuttal, the McQuillens called Grace Lubben, who was permitted to
testify without objection. Lubben, who was twenty-one at the time of the trial,
testified that she was a childhood friend of Margaret. They had both used 10
Snapchat—including a feature called Snap Map—since middle school. In
March 2020, when the accident happened, Lubben and Margaret were using
Snap Map to share their locations with each other. Lubben explained that
Snap Map locations only update when the Snapchat application is being used.
So, when Margaret was not using Snapchat, Snap Map would only show her
location at the last place she used Snapchat.
Lubben testified that after she learned Margaret was in a crash, Lubben
tried to use Snap Map to find Margaret’s location. Lubben testified that
Snap Map showed Margaret’s last known location was still at home. This meant,
Lubben said, that Margaret “had not been using SnapChat at the time of the
accident.” On cross-examination, Lubben conceded that she wasn’t a digital
forensic examiner.
But during closing arguments, the McQuillens’ counsel referred to Lubben
as a “SnapChat expert.” Counsel compared Lubben with Lorencz, saying,
“[Lorencz] was a digital forensic expert, but he wasn't a SnapChat expert. How
could he be one if he’s never used one, never had one, never even heard of Snap
Maps?”
At a break, defense counsel moved for mistrial on two grounds.2 The first
of those grounds was a complaint that the McQuillens’ counsel should not have
referred “to Grace Lubben as an expert” or compared Lubben with Lorencz, “who
is an actual expert.” Defense counsel noted that the jury would be instructed
about experts and “how the jury is to consider experts.” And so, counsel worried
that “[c]alling Grace Lubben an expert is going to be confusing to the jury
and . . . is a clear error and grounds for a motion for mistrial.”
2The second ground is addressed in the next division. 11
The district court disagreed. The court did not think that the McQuillens’
counsel was “necessarily using expert and expert witness” in any distinctively
legal way. Rather, “[h]e was just saying like look, you know, she knows more
about SnapChat than their so-called expert.” Moreover, the court noted that “the
jury instructions just tell them to consider an expert just like any other witness.”
We find no abuse of discretion in the court’s rulings. We first note that,
from our reading, Lubben’s testimony about how Snapchat works was fairly
technical and, therefore, was the type of evidence that an expert might provide.
See Iowa R. Evid. 5.702 (permitting qualified experts to provide testimony based
on scientific, technical, or specialized knowledge). So the defendants might have
raised objections based on the McQuillens’ failure to timely disclose Lubben as
an expert, or perhaps on the basis of Lubben’s qualifications. As it turned out,
though, all of Lubben’s testimony—including her technical analysis of how
Snapchat works—came in without objection.
In any event, we see no problem with the McQuillens’ counsel describing
Lubben as an expert on Snapchat. Because Lubben effectively testified as an
expert, it is hard for us to see much problem in calling her one. We also defer to
the district court’s finding that the McQuillens’ counsel wasn’t trying to mislead
the jury into thinking that Lubben held any special legal status as an “expert.”
And the “expert” reference seems especially innocuous in light of the jury
instructions, which told the jurors to treat expert witnesses like all other
witnesses. Beyond all of that, we note that digital forensics expert Lorencz was
central to the defendants’ effort to prove that Margaret was acting negligently by
interacting with Snapchat. Surely it was fair game for the McQuillens to make
arguments that might cast doubt on Lorencz’s expertise with Snapchat—including 12
a comparison of his supposed expertise with that of Lubben, an everyday
Snapchat user.
We affirm the district court’s refusal to grant a mistrial on this basis. For
the same reasons, we affirm the district court’s refusal to grant the posttrial
motion for new trial on this basis.
C. Arguing Beyond the Specifications. We turn now to the second
ground for the defendants’ mistrial motion—namely, the complaint that the
McQuillens’ arguments about negligence went beyond the specifications
contained in the jury instructions.
As explained, the district court submitted three specifications of
negligence against the defendants: (a) failure to yield the right-of-way upon a left
turn; (b) failure to maintain a proper lookout; and (c) failure to discontinue
operation of a vehicle under hazardous conditions. During closing argument,
though, the McQuillens’ counsel suggested that the jury could also find that
Takes was negligent because he had exceeded the speed limit earlier that day,
he had failed to plan a route that would minimize unprotected left turns, or he
had violated a company policy as to where he could park his truck. Defense
counsel did not object to these suggestions while the McQuillens’ counsel was
arguing. But, at the next break, defense counsel objected that the McQuillens’
arguments “do not match the specifications of negligence” and noted the parking
issue as an example. Counsel raised this as a second ground for mistrial.
The district court agreed that “part of” the McQuillens’ argument “was
improper” because it suggested that the jury could find negligence on grounds
other than those stated in the specifications. Ultimately, though, the court did
not think a mistrial was appropriate. For one thing, given the timing and nature
of the misconduct, the court thought the defense could clarify the actual limits 13
of the specifications in its closing argument. Also, the court did not think that
the McQuillens’ arguments involved any “intentional misleading” of the jury. The
court also emphasized that there were only “a few things” in the argument that
were concerning, and those constituted “a fairly small portion” of the total
argument. Meanwhile, “the vast majority of the closing argument was
appropriate” and “had some relation” to the actual specifications given.
Similarly, in its ruling on posttrial motions, the court again acknowledged
that parts of the McQuillens’ argument had been improper. At the same time,
the court again declined to grant a new trial because “the Court [could not] find
that it is probable that the result of the trial would have differed absent the
improper argument.” The court again noted that the improper arguments “were
a small portion of a lengthy closing argument.” The court also emphasized that
its written instructions—which the jury is presumed to follow—had provided the
jury with the proper specifications of negligence. The court also noted that
immediately prior to closing arguments, the court had specifically admonished
the jury that closing arguments are “not evidence nor should they be construed
by [the jury] as evidence or instructions on the law.” (Alteration in original.) The
court added that although the defendants’ posttrial motion complained that the
court should have given some additional curative instruction, such as a specific
direction to disregard parts of the McQuillens’ arguments, the defendants had
not asked for that kind of instruction during trial.
Following our review, we find no abuse of discretion in the court’s rulings.
On the one hand, the record supports the court’s determination that some parts
of the McQuillens’ argument were improper. On the other hand, though, we find
no abuse of discretion in the trial court’s finding that—given the totality of the
circumstances at trial—“a different result” would not “have been likely but for” 14
the improper parts of the argument. Olson, 999 N.W.2d at 300. Compare Olson,
999 N.W.2d at 300 (considering the entirety of the arguments and the court’s
curative warning to determine that the improper arguments were not
prejudicial), with Kinseth, 913 N.W.2d at 73 (holding that a new trial was
warranted when the improper arguments formed an “inescapable theme”).
Accordingly, we decline to reverse the court’s refusal to grant mistrial or its later
refusal to grant a new trial.
D. Present Value. Finally, we consider the defendants’ argument that the
district court abused its discretion by preventing the defense from making
arguments about the time value of money. See Lane v. Coe Coll., 581 N.W.2d
214, 218 (Iowa Ct. App. 1998) (reviewing limitations on closing argument for
abuse of discretion). We find no grounds for reversal here.
The time value of money—or TVM—“is a core financial principle that states
a sum of money is worth more now than it will be in the future.” Catherine Cote,
3 Financial Principles Every Professional Should Know, Harv. Bus. Sch. Online
(Apr. 12, 2022), https://online.hbs.edu/blog/post/finance -principles
[https://perma.cc/C984-V7DV]. TVM was relevant in this case. The jury was
instructed that it must apply the familiar TVM concept of “present value.”
Specifically, the instructions said that “[f]uture damages must be reduced to
present value,” which the instructions defined as “a sum of money paid now in
advance which, together with interest earned at a reasonable rate of return, will
compensate the plaintiff for future losses.” The McQuillens’ forensic economist
also provided testimony about the present value concept. And he offered specific
present value calculations for certain future damage items, such as Margaret’s
loss of future earnings. 15
Given these instructions and evidence, the time value of money might well
have been a proper topic of the defendants’ closing argument. And if the district
court had wholly prohibited the defendants from discussing the time value of
money, that prohibition could very well have constituted reversible error,
assuming that error was preserved. But that is not what we see in the trial
record.
Here again we need to provide some additional background facts. Prior to
trial, the McQuillens had moved in limine for a prohibition against the defense
making any arguments about what a person might buy with the amounts of
money that the McQuillens would ask the jury to award. The McQuillens relied
on “golden rule” precedents and asked the court to bar the defense from
arguments that would lead “the jury to imagine how they might spend the sums
requested by [the McQuillens].” The defendants resisted. They argued that the
McQuillens’ motion was “vague and enormously overbroad” and “[i]t is not clear
exactly what [the McQuillens] intend to prevent in terms of closing argument.”
The court granted the motion in part while also expressing some uncertainty as
to what arguments would or would not be allowed. Here’s the relevant ruling:
It is difficult to anticipate in limine what arguments will be made, or the precise wording of any such arguments. But, in light of the Court’s concerns, to the extent that counsel wish to offer an argument regarding what plaintiff could do with the amount of money being requested, counsel shall first raise the issue with the Court outside of the presence of the jury.
(Underlining added.)
Fast forward to the defendants’ closing argument, which was accompanied
by a PowerPoint visual presentation. Toward the end of the argument, defense
counsel put up slide 33 in their deck. Slide 33 was titled, “The time value of
money.” And it stated a number of assumptions and calculations. Important 16
here, slide 33 suggested that if the damages award were $3 million, “[a] person”
could “[i]nvest this amount at 4.0% per year” and receive annual interest of
“$120,000.” “A person could live on” that “$120,000 per year, and spend it all,”
the slide observed. Meanwhile, the original principal would remain unspent.
When slide 33 came up before the jury, the McQuillens’ counsel
immediately requested a sidebar and asked for the slide to be taken down. The
sidebar was not reported, and so, we have no transcript of what was said. But
we are aided by some additional record that was made after the case was
submitted to the jury. For starters, while the jury was deliberating, the
defendants filed a bill of exceptions together with an affidavit signed by the
defendants’ counsel. The affidavit explained counsel’s recollection of the sidebar.
Later, the McQuillens’ counsel also submitted a statement regarding what
occurred at the sidebar. Finally, in an order addressing the bill of exceptions, the
district court made findings as to what occurred at the sidebar. Those findings
are not disputed on appeal. Here they are:
Plaintiff’s counsel objected after Defendant’s counsel placed Slide 33 on the courtroom screen. An unreported sidebar conference was held, at which Plaintiff’s counsel argued that the slide violated the Court’s limine ruling. The Court agreed and indicated that this should have been brought to the Court’s attention prior to showing the slide to the jury, in accordance with the limine ruling. The Court instructed defense counsel not to display the slide. No additional restrictions were placed on defense counsel’s closing argument during the sidebar. Neither party requested that the Court make an immediate record on this issue or asked for a recess.
(Emphasis added) (footnote omitted).
We would add that there is no claim that the defendants made a motion
for mistrial as part of the sidebar.
Returning to the trial: once the sidebar was complete, defense counsel
continued on with closing argument. Notably, counsel said little more about 17
damages except that “[t]here was a lot of medical and damages testimony.”
Counsel did not discuss the time value of money in general or the particular
issue of present value.
Once the defendants’ closing argument was complete, the trial proceeded
directly to the McQuillens’ rebuttal arguments. These were followed immediately
by the reading of the last few jury instructions and, finally, the submission of
the case to the jury. Defense counsel did not ask for an additional opportunity
to make record prior to submission of the case to the jury.
After the case was submitted, counsel and the court made additional
record outside the jury’s presence. This record addressed the parties’ agreement
to a sealed verdict as well as the court’s expected procedure for handling any
questions that might arise during deliberations. The court repeatedly asked if
the parties would like to make any other record. Defense counsel raised no
concerns about the sidebar or any restrictions that had been imposed on defense
counsel’s argument.
All of that happened on June 7, a Friday. On the following Monday,
June 10, defense counsel submitted the already-described bill of exceptions and
accompanying affidavit. The bill of exceptions did not include any request for
relief. Later that day, the jury returned its verdict.
On July 1, the defendants filed their motion for new trial. Among other
things, the defendants claimed the court “committed error when it prevented
defense counsel from making certain impactful damages arguments”—specifically,
an argument about the time value of money. The district court rejected this
argument.
Now, on appeal, the defendants ask us to reverse because “[t]he district
court . . . prohibited the defense from discussing the time value of money in any 18
way.” We reject this argument for two interrelated reasons. First, error was not
preserved. “The doctrine of error preservation has two components—a
substantive component and a timeliness component.” State v. Krogmann,
804 N.W.2d 518, 523 (Iowa 2011). To meet the timeliness requirement, claims of
errors during closing arguments must be urged not later than “the close of the
argument in motion for mistrial made before submission to the jury.” Kinseth,
913 N.W.2d at 67 (quoting Andrews v. Struble, 178 N.W.2d 391, 402 (Iowa
1970)). This gives the trial court an opportunity to take corrective action before
it is too late. See Olson, 999 N.W.2d at 299. It also “discourag[es] parties from
engaging in a ‘wait-and-see’ approach by holding off objections . . . until after the
jury returns the verdict.” Id.
Here the claimed error is that the district court categorically prohibited the
defense from discussing the time value of money. This error was not timely raised
at trial. It was not raised during the sidebar, where the district court only ordered
that the defense could not use slide 33 and imposed “no additional restrictions”
on the defense’s argument. Nor was it raised at “the close of the argument in
motion for mistrial made before submission to the jury.” Kinseth, 913 N.W.2d at
67 (quoting Andrews, 178 N.W.2d at 402). Rather, it was raised for the first time
in the defendants’ motion for new trial. This was too late to preserve an alleged
error concerning closing argument. See id.
Second, as already suggested, we do not think that the district court
committed the error claimed now, that is, prohibiting the defense from
discussing the time value of money. Although the district court prohibited the
defense from using slide 33, no other prohibitions were imposed. Rather, it
seems that after the sidebar, the defense simply made a strategic choice to focus
on other topics. 19
V. Conclusion.
We deny the McQuillens’ motion to dismiss this appeal. Accordingly, we
have considered the merits of the defendants’ arguments for reversal. Ultimately,
we find no abuse of discretion by the district court. Therefore, we affirm.
Motion to Dismiss Appeal Denied; District Court Judgment Affirmed.