I had an opportunity to read
Alan Shanoff’s article on abolishing civil jury trials in Ontario in the Sept. 22 edition of
Law Times.
I was somewhat surprised at the assertions and conclusions reached by Shanoff as it seems he did not consult with any seasoned trial counsel who have done a number of jury trials before writing that article.
As a young lawyer, I was always taught to file a jury notice on most files (unless they are technically complex or there was a statutory exclusion for the use of a jury trial) as good practice. In fact, I now instruct all of my lawyers to file jury notices on all cases unless it is cleared with me ahead of time that it is not an appropriate case for a jury.
I assumed after reading Shanoff’s article that perhaps he has never done a jury trial himself and therefore does not understand the value and use of a jury. While I would agree with Shanoff that a vast number of jury trials involve litigation arising from motor vehicle accidents, they also involve litigation arising from any personal injury claim. There is good reason for this. The plaintiffs’ bar is attempting to pump up the numbers and damage assessments for their clients, some to the tune of $15 million to $18 million. The average liability or motor vehicle policies usually have limits of about $1 million. Some commercial general liability policies have limits of $2 million to $5 million. The absolute minimum limits are $200,000 in motor vehicle liability policies.
Contrary to popular belief, judges are in fact human beings. They possess emotions, feelings, and, from time to time, biases. They are human and they are not perfect no matter how hard they strive to be.
I should also point out that the selected judge may very well not be an expert in the specific area of law and the issues to be tried.
Many judges are well aware that motor vehicle and other defendants have insurance policies that will
respond to any claim brought by the plaintiffs. While they may not know the limits of those policies, they are certainly in a position to guess the amounts of money that may be in jeopardy.
Some people feel that insurance monies are essentially just another form of social welfare. That is, if a plaintiff needs money, we might as well just award it or society will have to look after the person anyway. One of the problems we have noticed is some judges are allowing experts to rule the courtroom. Many cases exceed the applicable insurance limits. I am sure many defendants would feel that if they are going to get their day in court and their personal assets are in jeopardy, they would like to use their substantive rights to have a trial by jury.
Just as Shanoff points out, plaintiff lawyers will call great numbers of experts and believe quantity is usually better than quality in order to convince the judge that their client is grievously injured.
It is my position that six people, using common sense and properly instructed on the law, are more likely to get it right that one person who may have some type of inherent bias. Five of those six people have to agree on the decision. In the case of a judge, only one person has to agree on that decision.
Contrary to what Shanoff says, juries do in fact give reasons for their decisions as they are required to outline the particulars by answering very specific jury questions.
Shanoff is completely incorrect when he talks about the tactical advantages that flow from a jury trial for insurers. Insurers generally do not want to be faced with a prospect of long jury trials if they can resolve the case. They are expensive. However, when they cannot resolve the case and the plaintiff’s demands are excessive, they, too, want six people to tell them they are wrong as opposed to one.
What, then, are the advantages of a jury trial? I would list them as follows:
1. Six people are examining a plaintiff’s credibility and demeanour on the stand as opposed to one.
2. Six people may not be persuaded by an expert as easily as one person.
3. Six people will not know what insurance monies are available and whether there is insurance and may be very careful about the amount of the award they make as six people perhaps would be persuaded by common sense and not take an overly technical and legalistic approach to their decision.
From a practitioner’s standpoint, jury trials are fun. They add an element of excitement and drama and require a bit of acting on behalf of counsel. That’s why trials on TV are always in front of a jury.
If the government decides to abolish juries, then I would suggest people should get ready for their insurance premiums to double.
Mark Harrington,
Torkin Manes LLP,
Toronto
