The recent decision in Holdgrafer v. Unocal primarily addressed the impropriety of using the defendant’s dissimilar acts towards nonparties as the basis for punitive damages. But the decision also contained an interesting footnote regarding another type of evidence that cannot be used to support a punitive award: evidence of the defendant’s litigation conduct. In footnote 17 on page 30 of the opinion, the court states that plaintiff’s counsel improperly urged the jury to punish Unocal for its assertion of a statute of limitations defense. The court’s statement is significant because, in our experience, plaintiffs often ask juries to punish defendants not only for their tortious conduct, but also for having the nerve to defend themselves. This opinion rejects that sort of insidious attack on a defendant’s right to have his day in court.