JURY TRIALS 2009: Skills and Tips to Demystify the Trial by Jury

From a presentation at the Trial Lawyers of British Columbia conference, Jury Trials, 2009

by James U. Buckley

Closing Argument

Jury research shows that by the time of closing submissions, the vast majority of jurors believe they have already made up their minds. Research shows that only rarely does a juror change his mind during closings.  The goal of closing argument is, therefore, not to persuade jurors of the righteousness of your client's cause.  Rather, it is to motivate, empower and provision the jurors who are favourable to your client for the argument that matters- the one in the jury room.  I strongly urge you to follow David Ball's book David Ball on Damages, The Essential Update, as a guideline to set up your closing submissions. 

In their useful text Rules of the Road, Rick Friedman and Patrick Malone emphasize the importance of "spoon feeding" to the judge those facts and principles the judge will need to decide the issue in favour of your client at trial.  The authors remind us that the job of a trial lawyer is not to impress the judge with how hard counsel has worked, what a long, complicated brief they can write, or how strongly counsel feel the righteousness of their client's cause.   The real job of a trial lawyer is to make it easy for the jury to decide in their client's favour.    

Know Where the Line Is

Good advocacy at times may require pushing beyond our comfort level and butting up against the rules.  You may choose to cross the line, you may choose not to, but you ought to be aware of where the line is.

The Court of Appeal has recently passed down reasons on what may or may not properly form a closing submission to a jury in a civil case.  In Cleeve v. Gregerson [2009] B.C.J. No. 13 (B.C.C.A.) the court heard the appeal of a decision at the trial level to grant a mistrial as a result of submissions of counsel made in closing argument. Kirkpatrick J.A. for the court notes that the reasons at the trial level were sparse and the precise nature of the objections which gave rise to the mistrial application is not known as the submissions and objections thereto were not recorded.  A review of the trial level reasons at [2007] B.C.J. No. 1846 adds little to the picture:

For example, one of the mistakes pertained to the Defendants' submission regarding the referral that the Plaintiff's treating physician made to Dr. Fuller. Specifically, he indicated that that referral had been made at the suggestion of the Plaintiff and that it had been made for tactical reasons associated with the litigation rather than for medical reasons.

This submission was contrary to the evidence. That is, the treating physician had testified that he had initiated the referral, not the Plaintiff. She went because he recommended it. Furthermore, this submission was directed at the credibility of the Plaintiff and in particular at her motivation for pursuing her claims. None of these allegations were put to the Plaintiff during her testimony.

This is but one example of the mistakes made.

The appeal of the decision to grant a mistrial succeeded.  In the Court of Appeal reasons Kirkpatrick J.A. lays out certain considerations for the court in determining what sort of comments in closing submissions will give rise to a mistrial.  As always these considerations offer useful guidance in determining where the "line" is between good advocacy and less than prudent conduct.

First, the onus on the applicant to satisfy the court on a mistrial application is very high.  The court must consider whether the jury may be preserved by way of some corrective instruction, or admonishment from the bench.  Only when that will not adequately correct the alleged impropriety will a mistrial be justified.

There is a heavy onus on the applicant to establish that the prejudice is so great that it cannot be remedied by the court. Ultimately, the trial judge must be of the opinion that the comments or conduct in issue caused a substantial wrong or miscarriage of justice, so that it would be unfair to continue with the present jury (Hamstra v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, 34 B.C.L.R. (3d) 10).

The question is whether the particular jury, in the particular circumstances of the case, will be able to dispel the matters of concern from their minds (Martin Estate v. Pacific Western Airlines, Ltd. (1981), 34 B.C.L.R. 39, 24 C.P.C. 237 (S.C.); Schram v. Osten, 2004 BCSC 1789, 33 B.C.L.R. (4th) 336).

In other words, the trial judge must determine that she or he cannot disabuse the minds of the jury in regards to the inflammatory remarks made by counsel (McLachlan v. Hamon, 2001 BCSC 1679; Martin Estate v. Pacific Western Airlines, Ltd.; Birkan v. Barnes (1992), 69 B.C.L.R. (2d) 132, 93 D.L.R. (4th) 392 (C.A.)).

Even where several errors have been made by counsel, an immediate and final instruction to the jury concerning the issues of concern may be sufficient to prevent a substantial wrong (Schram v. Osten).

Kirkpatrick, J.A. went on to summarize the circumstances in British Columbia in which mistrials were granted owing to comments and conduct of counsel in closing arguments:

1. Where in the concluding address to the jury, counsel for plaintiff breached an undertaking and prior ruling of the trial judge by giving evidence that the reason the plaintiff did not take the stand was because he had no memory of the collision which caused his injuries (Birkan v. Barnes (1992), 69 B.C.L.R. (2d) 132, 93 D.L.R. (4th) 392 (C.A.)).
2. Where defendant's counsel, during closing submissions and cross-examination, made inflammatory remarks throughout the trial and during submissions, including comments on causation, casting unfair aspersions on her use of jury challenges, and broad comments about the plaintiff's credibility that asked the jury to disregard evidence and take counsel's opinion into account (McLachlan v. Hamon, 2001 BCSC 1679).
3. In addition to various improprieties in the opening statement of the plaintiff, in the closing submissions, plaintiff's counsel inserted his own conduct into the case, made sarcastic comments in regards to the defendant, made an unfounded attack upon the personal integrity of a doctor witness, and put defence counsel on trial (de Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84).

Kirkpatrick J.A.  then referred to the Court of Appeal decisions in Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, at para. 41 and Lawson v. McGill, 2004 BCCA 68, 23 B.C.L.R. (4th) 254 insofar as those decisions set out what may amount to a mistrial in opening statements (Brophy), and then raise the applicability of that reasoning to closing argument (Lawson).  

In Lawson the Court of Appeal notes that the reasoning in Brophy is "for the most part" equally applicable to closing argument as to opening statements.  Be wary of these cases.  In fact it is not the same test for a mistrial arising out of closing arguments as it is for opening statements, and comments that may not be made in opening may very well be permissible in closing. 

In Lawson the real issue was the decision to exclude evidence of a doctor which was deemed inadmissible after the jury had been in possession of the doctor's reports for two weeks. Thackray J.A. summarized the trial judge's ruling:

On 17 February 2003 Mr. Justice Shaw gave his ruling on the motion. He referred to Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, 145 D.L.R. (4th) 193, 34 B.C.L.R. (3d) 10 and to O'Neill v. The Pacific Great Eastern Railway (1971), 24 D.L.R. (3d) 628 (B.C.C.A.). He then reviewed what he termed "the context of what occurred." He noted his order that Dr. Hayes' evidence be withdrawn and said he "harboured a concern as to whether the jury members could completely disabuse their minds as instructed." Mr. Justice Shaw then listed the items which he considered "improper and prejudicial":

[19] Here is the list of items:

1. Defence counsel submitted to the jury that a doctor has a duty to accept a patient's history; that the doctor does not check the patient's complaint of a sore knee, but rather goes straight to treatment. This submission mischaracterized the evidence from all the doctors called by both sides because it left out the examination stage which each doctor performed.
2. Defence counsel submitted to the jury that the diagnostic labels used by the doctors are not helpful because they only mean that the plaintiff has been complaining for a long time. This submission was not a fair characterization of the diagnoses made by the doctors. The diagnoses were not only based upon the histories of the complaints taken by the doctors, but, more importantly, their physical examinations of the plaintiff.
3. Defence counsel incorrectly stated that Dr. Wachsmuth said that the plaintiff is 70 per cent better. In fact, this was the observation of the plaintiff to Dr. Wachsmuth, not Dr. Wachsmuth's statement of opinion.
4. Defence counsel suggested that the diagnosis of Dr. Joy, a psychologist, was not acceptable because Dr. Joy was not entitled to determine whether, in his view, the plaintiff was malingering; whereas the evidence was that under the accepted psychologist's diagnostic criteria for pain disorder, DSM-IV, the absence of malingering is a matter that Dr. Joy was required to consider and did consider. See his report of October 6, 2000, page 19.
5. Defence counsel suggested to the jury that the plaintiff fibbed, in other words, lied, on her 2000 income tax return by describing herself as single when, in fact, she was living at her parents' residence for eight months of that year.
6. Defence counsel suggested the plaintiff lied to the welfare authorities when the plaintiff denied that she lied and there was no evidence that she did, in fact, lie.
7. Defence counsel stated his own views to the jury that he was not blaming the plaintiff for what he argued was her failure to mitigate.

Thackray J.A. went on to note at paragraph 39:

As can be seen from the list of remarks in the case at bar, defence counsel made improper remarks in both of those ways. As well, he mischaracterized some evidence and misstated other evidence. However, the trial judge, while finding the remarks inappropriate, did not appear to find them flagrant and, as such, they were subject to correction in his charge to the jury. He held that "in ordinary circumstances" he would be able to overcome "each separate point" made inappropriately by defence counsel, but he was of the view that he could not "dispel the prejudice ... in light of the fragile situation created by the evidence of [Dr. Hayes]."
It was the evidence of Dr. Hayes that grounded the discharge of the jury…

The case of Brochu v. Pond (2002), 62 O.R. (3d) 722 has been cited with approval by the BC Court of Appeal in Lawson and in Cleeve.  Brochu, and Brophy and other cases make it clear that personal comments of counsel are improper in closing argument. At paragraph 15 of that decision the Court of Appeal of Ontario states: 

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence…

In other words there are reasonable restrictions on what can be in a proper closing submission.  But the issue does not rest there.  Whereas advocacy may not be permitted in opening statement, it is unquestionably allowed in closings, and significant liberty is granted to counsel to advocate. At paragraph 49 Kirkpatrick J.A. in Cleeve cites the following passage from Brochu:

It has been noted, however, that counsel is afforded more latitude in the closing address to the jury, as compared with the opening address. As explained in Brochu v. Pond at para. 17:

Within those general constraints, however, and in contrast to opening addresses to a jury, counsel is afforded considerable latitude in a closing address: Sopinka, Houston and Sopinka, The Trial of an Action, at p. 130. In Stewart v. Speer, [1953] O.R. 502 (C.A.) at p. 508, Hogg J.A. commented for this court concerning closing addresses:

• It was said by Mr. Justice Riddell in Dale v. Toronto R.W. Co. (1915), 34 O.L.R. 104 at 108, 24 D.L.R. 413, that: "... a jury trial is a fight and not an afternoon tea." He further said that counsel has the right to make an impassioned address on behalf of his client and that in some cases it is his duty to do so, so long as it does not offend in other respects, and the Court should extend considerable latitude, "even to extravagant declamation". But the learned judge qualified this statement by stating that an unfair presentation to the jury should at once be checked and would warrant the trial judge in trying the case alone.
• There is truth in the observation made by Mr. Justice Riddell that a jury trial is a fight but, giving this remark its full value, there are certain rules which must be complied with, designed to ensure fair play to the opposing parties, whether in a fight or in a lawsuit. Although rhetoric which verges on the extravagant may be made use of by counsel, there is a general rule which common sense alone dictates, and that is that the language of counsel to a jury should not be of such character as is likely to prejudice the cause of an opponent in the minds of honest men of fair intelligence to such an extent as to work an injustice. [Italics in original.]
• One of the principal questions to be considered by this Court is whether that portion of the address of counsel with regard to which complaint is taken is merely an earnest plea to the jury, although perhaps an exaggerated one ... or whether it is prejudicial to the appellant's case to the extent that the jury were influenced by it to reach a verdict without due and just consideration of the evidence.

So, "… a jury trial is a fight and not an afternoon tea", but argument ought to be properly founded on the evidence and not the personal expression, thoughts, or beliefs of counsel.  That line should be easy not to cross in closing submissions. 

In fact, it is probably not necessary to even approach the line.  As will be seen, impassioned pleas for justice and the honour of the plaintiff need not be made and may not be helpful.  Rather, closing should be considered a tool to inform, educate and provision jurors for their deliberations, and the arguments which will occur during deliberations in the jury room.

Before we go on I would like to tell you about Bob

I have been lucky to have the opportunity to spend a good deal of time talking to juries, sometimes in small cases and sometimes in big ones.  In late 2007 I ran a jury trial with the following fact scenario:

• Bob, a 47 year old man, is walking across a busy street in Surrey at 10:00 p.m. on a cold rainy night.
• A witness says Bob is standing on a cement median that divides the busy street and that he steps off and takes one, two, at most three steps in front of a car that is turning left across his path, and hits him.
• The witness is certain that Bob was well outside the marked cross-walk when he stepped from the cement median, and is even more certain that the driver who hit him was not going very fast and braked just before hitting Bob.
• Bob had also been drinking heavily. His blood alcohol reading an hour after the crash is well above three times the legal limit for driving a car.
• Bob was unemployed at the time of the crash, and he was living in a motel room a block away from where the accident happened.
• It was not clear when Bob last worked before the accident but it had been a number of years. A short while before the accident Bob's brother made some inquiries and found that Bob was not working and seemed to be drinking heavily, so the family conspired to cut off the supply of money to Bob and to force him to move back to Canada to seek help for alcoholism.
• Bob came back to Canada to move in with his brother and his family. But a few weeks before the accident Bob was caught by a child sneaking drinks of alcohol and he was told to move out.
• The family relationship had become so soured that after the car crash no member of Bob's family was willing to step forward and act as his committee or litigation guardian.
• Bob suffered a severe brain injury in the crash. He was shuffled from hospital to hospital until he was finally placed in a living arrangement at a local nursing home with elderly and demented patients where he was visited only infrequently by his brother.
• In summary, your client suffered an indisputable brain injury, however, to get any damages for it you have to get past liability, contributory negligence, exceptionally high blood alcohol level, pre-existing alcoholism, lack of any provable work history, and a serious lack of friendly collateral witnesses from his family.

You'd be a fool to run a trial like that, wouldn't you? Sure you would. But what if you look at it another way?

• What if you knew that Bob, perhaps as a result of his accident, but in any event, was one of the most polite and charming gentlemen you'd ever met.
• What if the nurse who took care of him at the Nursing home was so charmed by him she thought of him as her favourite patient?
• What if the 19 year old defendant driver of the car that hit Bob had just left the bar a block away where she had two drinks before driving into Bob?
• What if your engineer told you that the Defendant's explanation for the accident did not jive with the irrefutable evidence of where your client's body came to rest and where the vehicle came to a stop on the roadway.
• What if all of your experts, your life care planner and most importantly the nurse in charge of Bob's care at the nursing home, tell you that for him to have any quality of life in the future Bob needs to be moved out of the nursing home to a place with the experience and knowledge needed to deal with persons with brain injuries?
• What if you know that the nursing home Bob is in has no staff trained in brain injury and a large patient to nurse or nurse-aid ratio? Bob has become violent and aggressive towards some of the other patients and, as a result, has been sent to the psych ward and heavily medicated to control his behaviour. He does not leave the facility, and rarely leaves his room. He is virtually imprisoned in the care home.

Now you can see a theme which can be supported by good cause and worthwhile purpose.   It was this theme that I built my case around, and it was this theme that wound through all of the evidence I called at trial.  I am convinced that it is this theme that lead to the verdict in favour of our client.  This trial culminated in a jury awarding damages of $2,300,000 to my client and finding the defendant 70% at fault for the accident.

This favourable verdict was probably not rendered because of my closing submissions alone and I will never be certain exactly what factors most impacted and influenced those jurors.  But I think that my closing played the role it was supposed to in arming my jurors to fight for that award on my client's behalf.  I have reproduced portions of my closing submissions throughout this paper for illustrative purposes.   I am not suggesting my format is better than any other, nor am I recommending my closing will work in every case.  Simply put it worked for me and my client and serves as a tangible way of explaining some points that may work for you.

In David Ball on Damages, The Essential Update, Ball opines that lawyers never win jury cases.  In fact, he says, no lawyer has ever won a jury case.  According to Ball, all trial lawyers can do is arm the jurors to go into deliberations and win the case for them.  Understanding this is important.  Knowing how to arm their favourable jurors (Ball refers to these as "your juror advocates") is terribly important. 

Be mindful that your favourable jurors are looking for you to provide them with a means of addressing the jurors who are undecided (or leaning against your client) in the jury room. They already believe in your client's case and will advocate for your cause but they need help to convince their fellow jurors of your position.

To arm favourable jurors, Ball encourages trial lawyers to boil down each of the important themes of the case to a brief, plain-English sentence of ten words or less. These themes permeate the case and are incorporated into opening statements, direct and cross-examinations and closing arguments. These allow juror advocates understand the harm caused to the plaintiff; the "worthwhile ness" of the money the plaintiff is asking for; that it is the jury's job to make up for the harm with their verdict; and that the defendant's conduct caused the harm to the plaintiff. ¹

Let the jurors know that they are being armed for their deliberations by returning to the themes of the case.  "If someone in that jury room asks you why you should give the plaintiff so much money, remind them it is because her pain will never ever get better or go away".   Dr. Ball's studies show that advocate jurors will defend a position they believe in when properly armed to do so.  This is a tool recommended for closing arguments but to be effective it requires careful consideration before the trial starts and methodical return to the themes of the case during each part of the trial.

There is a second, significant benefit to arming advocate jurors.  Use your closing to relieve jurors of concerns that their family or friends might react poorly to their decision.  Dr. Ball notes that some jurors are reluctant to award much money in a case if they anticipate criticism afterwards by people close to them or in their community.  Although jurors are barred from discussing their deliberations in Canada (pursuant to s.649 of the Criminal Code) it is fair to assume that the underlying concern may be real to some jurors and should not be ignored.  To help address that concern Dr. Ball recommends that trial lawyers strive to allow jurors to be proud of their verdict, and to feel prepared to justify their verdict in the community if need be: "We did the right thing because the plaintiff's pain will never ever get better or go away."  

You have Created "Juror Advocates". Let me Help you!

You have spent days, weeks, or months creating jurors who are favourable to your case.  You have convinced them that your client has suffered serious harm, caused by the reckless choices made by the defendant, and that your client deserves a great deal of money to compensate for or balance off the harm that was caused.  You have created what David Ball refers to as "juror advocates".

As with any group of people from disparate backgrounds, occupations and walks of life, there are bound to be jurors who do not share the convictions of your juror advocates.  Use your closing argument to help your advocate jurors so that they can convince their fellow jurors that you are right and that your client deserves what you have asked them to award her. To do this you must make them listen.  You must motivate and empower them.  You must arm them for their battle.

Make them Listen

Assume that most jurors do not listen to closing because they think they have made up their minds. According to Ball "even the few still trying to make up their minds stop listening as soon as they realize that the closing is just rehashing what they have already heard" .² Get their attention by focussing on what they must do and how you can help.

This should surprise them into listening for a moment, because they think they only have one job, to decide the case.  According to Ball But you have just told them they will need to persuade their fellow jurors of the righteousness of your/their cause.  You are giving them comfort that when it is their turn to vote or to argue their point of view, you will have given them to tools to do so.

In focus groups we conducted before adopting the Ball approach, I have observed that generally the loudest voice in the jury room prevails.  Why?  Because most people will not stand up to a bully unless they feel well equipped to do so.  Use your closing to arm your jurors in case that loud voice in the jury room is set to vote against your client. 

And tell them you are doing it- do not assume they will distil the arguments you want them to make for you by osmosis.  I used David Balls' approach: 

A short while from now, you will all go back into the jury room and you'll have two jobs to do.

One job will be to answer the questions the judge gives you. Your other job will be to explain to the other jurors why you feel the way that you do about each question.

Over the next short while I'd like to give you some ways to do that.

Remind them Why they are Here

You did this in your opening and you have built your case around the doctrines of personal responsibility and accountability for one's actions.  You started the case focussed on the defendant's conduct.  Do not stop now.  Use your closing as an opportunity to remind them that is the defendants' bad choices that caused harm to your client, and forced your client to seek compensation for her losses.

Please remember we are suing the defendant because her unsafe driving choices caused Mr. K's permanent injuries.

Remember, every driver must yield the right of way to pedestrians who are out on the road ahead of them.  We know that is because the risk of harm to a pedestrian when they are hit by a car or truck is tremendous. 

She had time to stop and avoid this all. She had time to steer around him and avoid this all. She had time to warn him and avoid this all.

She had Four simple easy options:
Don't drink and drive,
Slow down,
Change lanes,
Turn wider. 

We also know through common sense that the defendant could have blown her horn, or stopped and waited for pedestrian to cross because she saw him from so far away.  In other words if she used the caution required for the conditions (night time, rainy, two beers, pedestrian areas, etc.) she should/could have avoided hitting pedestrian all together, or reduced the chance of serious injury to the pedestrian. 

She chose to go the bar and have two pints of beer before getting into the truck and driving home.
She chose not to steer wide
She chose not to slow down and worse she chose to speed up
She chose not to be more careful despite the two beers.
She chose not to sound her horn or warn him she was coming

Motivate Them

As mentioned, there were many obstacles to overcome in Bob's case.  But, eight people sat and listened and deciphered and laughed and cried not because of some parlour trick or slight of hand from a lawyer.  Not because of some advocacy skill I rehearsed for hours or weeks or years to persuade them.  I believe that they reached the verdict they did because it was the right thing to do. They reached the verdict that they had to reach.

Remind the jury of the harms caused to your client and the evidence you called to support your claim.  Don't go over it line by line.  You will lose their attention. Their only job for the trial was to listen and make notes of the evidence.  Hit the high points, the ones that motivated you to take the case on or to push on to trial and remind them that their verdict is all that matters to your client. 

Restore him physically as much as money can, and restore his dignity by a thorough and carefully considered award for these human losses.

When the trial is over, you and I will go back to our lives and go on to other things. But your verdict will have an impact on Mr. K. every day for the rest of his life.

Arm Your Juror Advocates

Focus your efforts on arming the jurors that are already on your side to convince the ones who are not.  Once your closing is completed, and the jury files into the jury room, you can no longer argue your case.  Your juror advocates will have to do it for you. 

You case depends on the results of their argument.  Give the jurors who are with you what they need to answer the sceptics on the issues you can lose on.  Don't assume they will draw your points out of your submissions and argue them for you.  Help them out.  Tell them you are arming them so it is easy for them. Here are a few examples:

The defense challenged, Engineer R., suggesting his opinion was only as strong as the assumptions he was given.

If someone suggests that in deliberations, remind them that Mr. R's assumptions were identical to the defendant's sworn evidence under oath, at the examination for discovery. I read that to you on the first day of this trial.

Or

If someone suggests in deliberations that there was no time for her to react to Mr. K tell them that if he stepped off in front of her and she hit him right away he could not land in the curb lane where all the witnesses say he landed.

Tell them that Engineer. R's diagram even gives the defendant the benefit of the doubt – putting Mr. K's body at rest at the dividing line between the two lanes.

Tell them witness X says up to three steps But he also says Mr. K's body was within two feet of the curb on the side of the curb lane.

Tell them that if witness X is right about where the body was, Mr. K had to be even further across the road when he was hit and remind them that witness X was the defendant's witness, called to support her story of what happened.

Tell them the defendant's own witnesses proved that Mr. K. was substantially across the road before she hit him

Or

If someone suggests that her reaction time, vision, awareness, judgment were not affected – remind them of what the defence expert told us, and we all know from our own life experiences: every drink a person has moves them away from "normal" and every drink they have has some effect on that person. She says she had two pints of beer but she felt totally normal and did not choose to drive with any heightened awareness in case her reaction time was slower.

If someone suggests "But wait she said she felt totally normal" tell them that surely we did not expect her to come to court and say otherwise, but does it make common sense? I am not suggesting (never have) that she was drunk, nor am I suggesting that you punish her because drinking and driving is morally reprehensible. I am simply suggesting that in making the choices she did that night, she did not act in a cautious and prudent way. I am simply suggesting that her evidence does not make common sense.

On future care and life expectancy:

If someone is worried about awarding Bob more care than he will need, remind them that Bob has the right not to have to be worried about money. He has the right not to be concerned about moving again. He has the right not to be agitated about having to change or cut back on the care and assistance he needs.

He deserves the benefit of the doubt on this one because he cannot come back to court again and ask the judge or another jury for more money because this jury decided he would only live 11 more years or 15 more years.

If the care award is too low, the money will run out and the scales will not balance- there will not be complete compensation.

Or income loss:

So long as we are healthy, there are fields of opportunity before us that are usually unique to our skill set.

But, start restricting the job tasks that someone can do in a particular field due to injuries, and you start to limit their ability to compete as they could before. The more restricted the abilities are, the fewer and fewer employment opportunities likely to be available to that person.

When you're discussing this heading, remember:

The injuries are permanent and all of the evidence supports a finding that Mr. K. will never be able to work again.

Remember, when someone asks about why you have to give him so much for future wage loss- remind them that Mr. K. will never be able to work again

Help the Jurors Respond to their Friends

Lawyers know that it is a criminal offence in Canada for jurors to discus their deliberations outside the jury room.  But fear, reasonable or not, that they will be subject to criticism can make jurors reluctant to give your client much money.    

Help them out.

Q. Why did you give him so much money?
A. Because Mr. K. will never be able to work again.

Help the Jurors understand the Important Legal Concepts

Avoid legalese but explain important legal concepts before the judge does. In other words do your best to "massage" the Charge before the jury hears it.  Keep in mind that your jurors do not understand legal language, and the judge's charge will have plenty of that.  So explain the concepts that are most basic and integral to your case, like "Burden of proof".  If you leave it to the judge or your opponent to explain these concepts it could be too late.  

Here is the standard charge to the jury on Burden of Proof of negligence from the Civji manual³:

The burden of proof is on the Plaintiff. I have told you that, as a matter of law, the defendant owed a duty of care to the plaintiff at the relevant time. The plaintiff must satisfy you on a balance of probabilities:

1. That the defendant failed to meet the standard of care required in the circumstances; and
2. That as a result of failing to meet this standard of care, the plaintiff suffered the damages of which he/she complains.

Here is part of the charge on burden of proof of damages:

In respect of each claim of damages the burden is on the plaintiff to prove that the injury/loss giving rise to the claim for damages occurred and that it occurred as a consequence of the defendant's negligence in running over the plaintiff

As I told you, all facts must be proven on a balance of probabilities. In your assessment of damages, this principle also applies to any fact on which the plaintiff relies to prove that a certain injury /loss occurred. For example facts relied on to establish the plaintiff current physical condition must be proven by expert testimony or otherwise on a balance of probabilities. This also applies to claims that can be quantified and proven with certainty, such as the pre-trial, out of pocket expenses incurred by the plaintiff…. ⁴

The Civji authors then explain standard of proof for contingent or future events, before explaining balance of probabilities like this:

In deciding what actually happened in the past, you must weigh the evidence and reach conclusions on a balance of probabilities. Anything more probable than not you should treat as certain. When you are asked to determine what might happen in the future, or what might have happened in the future but for the injury/loss you must use a different method of proof. First, you must decide if the event is a real possibility, rather than merely guesswork. If it is a real possibility, you must determine the actual likelihood of its occurring.⁵

From my experience this part of the charge usually takes places an hour or more into the judge's charge. If you wait until the jury is instructed on the law in that manner, you may come to regret it. Pre-empt the charge on those points that matter to you and where you think the jury will need some help. Do not assume they will listen intently to the judge, and absorb the entire carefully laid out 300 page, 5 hour charge. Make it simple for them, and arm them in the process.

On Liability:

You also heard the defence counsel suggest that Ms. Paterson had only a few seconds to react to the pedestrian. If someone suggests in deliberations that there was just not enough time for her to react to Mr. Kerr tell them she had ample time because she saw him before she even entered the intersection. She recognized it was a pedestrian. She knew pedestrians crossed the road there. He was very close to a cross walk. She monitored him. And he had to be on the road in front of her for some time before she drove into him.

Remember, the only evidence brought to court on this issue was Mr. engineer's accident reconstruction. And he said the defendant's story is not scientifically possible.

If someone has doubts remind them that is ok. You are allowed to have doubts. You only have to be convinced that it is more likely than not- 50.1% is enough. I think the evidence is much stronger than 50.1% and likely some of you do too. But if one of you has a reasonable doubt – that is ok.

Put it another way- if someone says in deliberations maybe she didn't have a chance, remind them that the defendant's own witnesses proved scientifically that Mr. Kerr was substantially across the road, headed east, either in or very near the cross walk when she hit him.

Later, hit the issue of burden of proof and balance of probabilities head on.

Has the plaintiff met his Burden of Proof? Let me explain that again.

You answer this "YES" if you decide that it is more likely "yes" than "no". You can have doubts either way, all the doubts you want. If it is more likely yes, then the answer is yes.

If you come down to thinking that the answer is more likely yes even by a little bit, then the only legal answer is "yes". We've shown you much more then just "more likely than not" (show scales one high one low) but "more likely than not" is all it takes. That's how everyone here expects you to make your decisions. The defence counsel agrees and in a little while the judge will tell you it's the law.

So during deliberations, if anyone says they're just not sure, or they're not convinced beyond all doubt, remind them that all Mr. K. has to do is persuade you that the answer is more likely yes than no. If they are still uncomfortable with that, ask Mr. Foreman to read you that part of the judge's charge again on "standard of proof" and "balance of probabilities" which means more likely than not. If that does not help, ask the foreman to pass a note to the Sheriff to see if judge can come and explain it again.

What the heck are "non-pecuniary damages"? Well, Civji explains non pecuniary damages as "personal losses that have not required an actual outlay of money… to compensate for such things as pain, suffering, disability, inconvenience, disfigurement, loss of enjoyment of life". The explanation of pain and suffering that follows upon this includes the following comment:

Although you cannot truly compensate for pain and suffering, you must try to assess an amount for the plaintiff that is moderate but is fair and reasonable and bears some reasonable relation to the loss and injury claimed, as shown in the evidence.⁶

What is a jury to make of that? Their award should be moderate and fair and reasonable but how do they calculate the figure. Why won't anyone tell them how to do that? You can and you should. There are a couple of different ways to do so. You can provide a descriptive scale and highlight where you client fits on the scale. You can add in a reference to the number of days with which the plaintiff has endured her injuries, and the number she is likely to have to endure in the future. This can make the jurors consider the intangible concept of pain and disfigurement, in a tangible way. Is $1 per day for 10,000 days moderate and fair and reasonable or is $1,000 per day? I tried it a different way:

So, if someone is injured, and their injury and pain is not too bad, and it goes away within a few weeks and really all it means is that they couldn't go play golf for a few weekends because their back was sore, then that harm is small and it would take only a little bit of money to fix it.

Now lets move up the scale. if the pain is worse, the kind of hurting that the person just can't forget about completely, and keeps them up at night because they can't get comfortable and it lasts a few months or a year, then it takes more money to make up for that pain and fix that harm.

Now lets jump up the scale even further. What about when the injury is so bad that a person cannot remember things from one moment to the next, they cannot think, reason, control their behaviour, initiate activities, or care for themselves. They get severe headaches, dizziness, balance problems and their walking is unsteady, they swing the wrong arm with the wrong leg when they walk. They don't know where they are or when exactly it is. It's going to take even more to make up for that pain.

Now assume that person is not going to get better. They'll have good days and bad days, but the injuries will affect them every day all day for the rest of their life. They are at risk of getting worse. They may fall because of the walking and balance problems and that will make their world even worse. They are at risk of developing psychiatric disease earlier because of the damage to the brain.

It will require a very significant amount of money to make up for that harm.

Be sure to also massage the liability instructions

The judge will tell you that under our law the defendant's conduct is measured against a standard of "ordinary prudence and intelligence". That means that the defendant's actions are compared against ordinary caution or good sense.

I am not suggesting you hold the defendant to a standard of perfection The judge will tell you that would not be correct. He will tell you that in our legal system the behaviour or conduct of the defendant is not measured that way.

He will tell you that the defendant is not required to "exercise extraordinary caution or unusual skill or foresight". That means she is not required to exercise astonishing or amazing caution or strange or abnormal skill or precaution.

Nobody is suggesting that she should behave like a superhuman or a genius or a person who can display the highest skill a person could ever be capable of. But, the law requires that she should behave like a person of normal intelligence who uses ordinary caution and good sense. Think about how that applies to what you know about this case

Did she require astonishing or amazing abilities or caution to have avoided all of this? No way.
Slow down
Steer around
Attract his attention
Don't drink and drive.
If you even drink only two pints of beer and you choose to drive, give yourself a little more time to react to things on the road when you're driving home. Slow down. Be extra careful.

Ordinary caution and good sense- that is all we ask of her. But in weighing all that you heard- it is more likely than not that her actions fell below the level of ordinary caution and good sense and you must find her liable. It is more likely yes than no to that question.

The judge's instructions on the law are full of legal words and terms we take for granted as lawyers. Remember that just like the rest of the trial, if you have any disagreement or uncertainty about the meaning of the instructions you are given, ask Mr. Foreman to reread the part you do not understand. If you still have questions about the meaning of something ask the sheriff to pass a note to the judge so that he can explain it to you again.

Use "Judo Law"

When the defence has something bad against your client don't go on the defensive.  Sit down and think.  Think about it for as long as it takes to figure out how to turn it around and use it against them – so that it hits them harder than they can throw it at you.  Then call Debra Miller and get her advice on it.  Take her advice.  Trust me.

In my trial the plaintiff's blood alcohol level was quite exceptionally and quite indisputably high.  I was sure this issue would be the biggest stumbling block to a plaintiff's verdict even though my client was a pedestrian.  It was the issue I lost sleep over and woke up in a sweat worried about.  Until I called Debra Miller.

Debra listened to me for a while and then reminded me that no matter what I thought, no matter how much I wanted to dodge it, this would be the issue.  Then she told me there were good things about what went on that night that could help me.

She reminded me, for example, that the 19 year old defendant hit my client a block away from a bar where she had consumed two pints of beer.  Although she was not legally impaired, I could use this to "flip" the "alcohol issue" around on the defendant. 

In cross examination the defendant's expert testified that even the smallest amount of alcohol begins to move a person away from "normal" reaction time and awareness.  Her opinion was that my client's severe level of impairment impaired his "judgment" significantly.  By linking these issues I was able to use the most devastating evidence against my client to highlight the defendant's conduct to the jury in my closing.  I used the language of their expert to highlight what my client did right, and to highlight what the defendant did wrong:  

If someone suggests that her reaction time, vision, awareness, judgment were not affected remind them that of what the defence expert told us, and we all know from our own life experiences, every drink a person has moves them away from "normal" and every drink they have has some effect on that person.  She says she had two pints of beer but she felt totally normal and did not choose to drive with any heightened awareness in case her reaction time was slower. 

If someone suggests "But wait she said she felt totally normal" tell them that surely we did not expect her to come to court and say otherwise, but does it make common sense?  I am not suggesting (never have) that she was drunk, nor am I suggesting that you punish her because dinking and driving is morally reprehensible.  I am simply suggesting that in making the choices she did that night, she did not act in a cautious and prudent way.  I am simply suggesting that her evidence does not make common sense. 

You've heard the defence expert opinion that Mr. K's blood alcohol was very high when they tested it at 11:34 in the hospital.  If someone suggests that this is proof that the accident was not the defendant's fault, remind them that this is really just a guess.

Remember, this expert opinion was only that he "may" have been acting or behaving in certain ways.  It was based on some assumptions that were never and could never be proved like that he started drinking at 10:00 in the morning.  Where is the evidence to support this?  There is none.

Remember there is also no evidence of when he had his last drink.  If he had it within a half hour of the accident then the alcohol would not be in his blood (and not affecting him) but would show up later when they did the blood sample at the hospital.

I am not disputing that at 11:34 his blood serum level showed a high alcohol level.  I am not disputing he was drinking that night. But I do urge you to consider whether it played a role in this accident at all.

Remember that the expert agreed that in her opinion a hypothetical person might behave in certain ways showing poor judgment due to alcohol, but that Mr. K's real behaviour leading up to the crash showed good judgment, not bad. 

He was walking- not driving.  Good judgment.
He was crossing at an intersection.  Good judgment.
He was in or very near to a cross-walk.  Good judgment.
He was crossing on a green light.  Good judgment.

Also keep in mind that she said someone with that much alcohol in the blood at 10:40 would look drunk to a casual observer.  But neither the defendant nor witness X said he was behaving in any sort of odd manner.  I suggest that means he did not look drunk .

And remember this comes from the defendant herself and the defendant's own witnesses.  Is it fair for her to have it both ways and now argue that whatever alcohol Mr. Kerr drank that night is what caused the accident?

Keep it as Short as you can

The attention span of the average juror is decreasing.  A behavioural study by Lloyds TSB Insurance reveals that the attention span of the average person is now just five minutes and seven seconds. In spite of this trials are taking significantly longer than ever before.  Trial lawyers should cater their approach to jurors and keep their trials, and closings, short.

A behavioural study commissioned by Lloyds TSB Insurance reveals that the average attention span is now just five minutes and seven seconds, compared to more than twelve minutes a decade ago.  The study attributes this decline in attention span to busy lifestyles, modern technology, television and the "instant gratification" now provided by the internet.

Ironically, despite the declining average attention span, the length of jury trials appears to be increasing. We live in an era where even the simplest of cases seem to require escalating amounts of court time. On average, a civil jury trial in British Columbia now requires approximately ten days of court time (albeit down slightly from 11 days in 2007). In the United States, the average length of a jury trial in a tort case is reported to be just four days.⁷

SUPREME COURT; Average Hours for Civil Jury Trials in British Columbia⁸

	2005	2006	2007	2008	Grand Total
Total number of trials proceeded	51	33	38	52	174
Total Average number of hours	37.49	39.47	46.64	43.34	41.61

Rest assured that your jury will appreciate all you can do before and during trial to shorten the trial process and allow the jurors to return to their regular lives. Give them what they need to make your case. Give them what they need to be comfortable making their decision. Give them what they need to understand what it is they need to do, and how they are to do it. Then sit down and trust they will do the right thing.

References

¹David Ball, Ball on Damages; The Essential Update (Chicago: National Institute for Trial Advocacy, 2005).

²David Ball, Ball on Damages; The Essential Update (Chicago: National Institute for Trial Advocacy, 2005).

³Justice Wilson, R.D., Justice Garson, N.J. & Justice Hinkson, C.E., Civil Jury Instructions, 2d. ed. (Vancouver: CLE of BC, 2009) [CIVJI].

⁴Ibid.

⁵Ibid.

⁶Ibid.

⁷Ian Mulgrew, "Effective, Affordable Civil Justice Keys on Court Rules" The Vancouver Sun (1 April 2008).

⁸Statistics provided by Cindy Friesen, Director of Supreme Court Scheduling, in an email dated January 19, 2009.

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