The proper allocation of the burden of proof during closing arguments is a recurring issue in civil litigation. On August 19, 2025, the Illinois First District Court of Appeals affirmed the trial court’s decision to grant a new trial in Harrell v. City of Chicago, offering important guidance regarding improper burden shifting during closing arguments. 2025 IL App (1st) 240119, ¶ 83. The ruling makes clear that while parties may highlight unrebutted evidence, only defendants may highlight when an expert was not retained to rebut or prove a specific element of the case.
Case Background
On June 24, 2017, Stacy Harrell was driving with her daughter when police officers heard gunshots and observed a white Kia Sorrento suspiciously fleeing the area. The defendants in this case were the City of Chicago, a Municipal Corporation, and three police officers. Officers attempted to stop the Kia, which led to a high-speed chase. During the chase, the Kia collided with plaintiffs’ vehicle at approximately
60 miles per hour, killing Stacy and injuring her daughter. After trial, the jury found the city liable and awarded over $10 million to plaintiffs for willful and wanton conduct in the police pursuit.
Defendants moved for a new trial arguing, in part, that plaintiffs had presented an improper closing argument. Namely, in their motion for a new trial, the defense highlighted that plaintiffs’ closing argument was improper because it shifted the burden of proof from plaintiffs to the defense. During closing argument, plaintiffs’ counsel commented that “the City called no witnesses” and that “the City couldn’t find” an expert to rebut plaintiffs’ expert’s testimony. Despite repeated sustained objections for “burden shifting,” counsel persisted with these arguments.
Plaintiffs’ Response and the Court’s Analysis
Plaintiffs relied on Wilson v. Moon, arguing that in Wilson, the defendant’s comment that the plaintiff “couldn’t find” an expert was deemed proper argument. 2019 IL App (1st) 173065, ¶ 50, 138 N.E.3d 150, 173.
However, the Illinois Court of Appeals distinguished Wilson, noting that “the comment in Wilson was made by defense counsel about plaintiff’s failure to call an expert, which could not amount to burden shifting, as the plaintiff always has the burden of proof in a civil action.” In contrast, in the instant matter, “plaintiffs’ counsel criticized the defense’s failure to present expert testimony.”
The Illinois Court of Appeals noted that while counsel is afforded wide latitude during closing argument, and may “comment and argue on the evidence and any inference that may be fairly drawn from it,” a party may not shift the burden of proof to its opponent.
The Proper Standard
In civil cases, a plaintiff may point out that “their expert’s testimony was unrebutted” or note that its expert provided “the only testimony” on a particular issue. However, the Illinois Court of Appeals has already provided precedent that it is improper to rely on the argument that a defendant did not provide expert testimony to rebut any specific evidence. The Harrell court cited to Niewold v. Fry, where the Court previously ruled that comments such as, “it’s curious that the defense, who knew for two years that this man was going to testify, they never—they never secured an expert” was improper. Harrell, 2025 IL App (1st) 240119, ¶ 87 (citing Niewold v. Fry, 306 Ill. App. 3d 735, 744, 714 N.E.2d 1082, 1089 (2d Dist. 1999)).
After a review of the particular language used in the instant case, the Court of Appeals found that counsel’s statements were not materially different than those in Niewold, where improper burden shifting was found. As such, a new trial was properly granted.
Key Nuances in the Court’s Ruling
In its decision, the Court highlighted two noteworthy nuances:
- Failure to Call Available Witnesses
The Court distinguished the closing statement at issue from cases where plaintiffs had pointed out the defendant’s failure to call an available witness. In fact, the Court outlined that “the law permits remarks about a party’s failure to call a witness within that party’s control,” such as when corporate defendants fail to call an employee to trial. The Court pointed to a specific example where a corporate defendant failed to call an employee who had been listed as their expert and deposed twice. Ryan v. E.A.I. Const. Corp.,158 Ill. App. 3d 449, 462–63, 511 N.E.2d 1244, 1252–53 (1st Dist. 1987). However, this was not the issue in the current case since “there is no claim that any previously retained expert witness was not called.”
- Persistent Violations
The trial court found that “counsel persisted in making these statements long after the trial court had repeatedly sustained objections to it, and the statements grew more inflammatory in open defiance of the trial court’s rulings.” The court determined that “counsel’s arguments in closing, at times, clearly crossed the line from arguing that their evidence was unrebutted to shifting the burden onto defendants.”
Takeaway
The Harrell decision clarifies that while defense counsel may argue a plaintiff “couldn’t find” an expert, or failed to provide expert testimony, plaintiffs cannot. This ruling serves as a critical reminder that the plaintiff always bears the burden of proof in civil actions. The burden of proof remains fixed and closing arguments must respect this fundamental principle.