In times past, the vast majority of personal injury cases would settle after meaningful negotiation between the parties. Unfortunately, the role of meaningful negotiation has decreased in recent years. A growing number of insurers have adopted an aggressive negotiation strategy, especially towards cases involving chronic pain injuries. Usually, these insurers assess the case by means of an internal committee and then tell your lawyer what they will pay. They may negotiate, but it is within a very narrow range. Generally, a line is drawn in the sand – and it is the plaintiff’s choice to take it or leave it. “Leaving it”, i.e. rejecting the insurance companies’ offer, usually means that the issues in your case will be decided by six strangers pulled off the street. These people are called a jury in our legal system and you are a main participant in a jury trial. A large part of your decision making strategy of “taking it or leaving it” must be governed by a full understanding of what happens during a personal injury jury trial. What factors will you need to weigh to help you determine whether your case has the probability of success before a civil jury?
You should first determine if your lawyer has developed the necessary skillset to properly bring your case through a jury trial. You may be surprised to learn that trial skills, especially jury trial skills, are not taught in law school. The only way to improve trial skills is through actually participating in trials. Surprisingly, very few lawyers have the experience and sufficient skills to conduct a jury trial.
There are several ways to find out if your lawyer has the necessary skills. The easiest is to look at the Directory of Certified Specialists, which can be found at the Law Society of Upper Canada’s website (https://www.lsuc.on.ca) under the “For the Public” tab. The Law Society of Upper Canada grants specialization certificates in civil litigation to those individuals whom their peers have acknowledged have a basic competency in trial skills. Those who have earned this certification will be listed on the website. Another way to find out if your lawyer has the necessary trial skills is to ask your lawyer for a reference. Do they have a previous client who has been through a trial with them and will tell you that they were comfortable in the court room with your lawyer? Do you know people who work at the court house? They can be a tremendous source of knowledge. A basic Google search will also reveal information about your lawyer’s experience.
I would caution plaintiffs that a lawyer’s success rate in trial is not the most important consideration. Rather, the important question is whether they have put on their robes and learned the necessary skill set to do a trial. The win/loss ratio is not the determining factor because by their very nature trials occur only when there is a real issue in dispute. If a personal injury case does not involve a significant dispute over facts or the law, it will almost always settle before trial. Furthermore, a lawyer does not get to pick the side they represent. Often, the more skilled lawyer is asked to represent the more difficult position. Your lawyer’s skillset is not defined by their win rate, but rather by the number of trials under their belt. Having a lawyer who tells you that they have a high win rate could be good; however, it could also mean that they are not confident with the tough cases. Remember, the only way a lawyer can learn the skill sets necessary to win a civil jury trial is to actually do them – so make sure your lawyer has that experience.
Your next consideration once you are comfortable with your lawyer’s skill set is to determine if you are willing to accumulate the appropriate knowledge and commit to the considerable time necessary to proceed through a civil jury trial. To help you make that decision, you will have to lean very heavily upon your lawyer (see above). Your lawyer should be prepared to spend sufficient time helping you understand what your role will be at your trial. You should have a strong appreciation for understanding your role during both an examination in chief and a cross-examination. The examination in chief is when your lawyer asks you questions while you are on the stand as a witness, and the cross-examination is when the opposing lawyer, who represents the insurance company, asks you questions. The type of questions you will be asked in each case is different. The style of questioning will be different. You need to understand the difference and how you can effectively meet this challenge. In addition to being prepared by your lawyer, it would be important for you to access learning tools on the internet, such as demonstrative videos and articles. The bottom line is that both you and your lawyer will need to spend considerable time preparing for a jury trial.
While it is unfair, the reality is that the jury in your case will judge you, your credibility and your likeability. This may seem harsh, as factually you are an innocent victim of another’s negligence. However, a jury will be listening to two sides of the story and will have to choose between them. The jury will form their impression of whether or not to award you money to pay for your losses based upon their impression of your credibility and trustworthiness.
The trial process begins with jury selection. Jury selection is a separate process from the actual trial. In a civil jury trial there are six jurors, unlike a criminal trial jury which consists of twelve jurors. Your lawyer has a very limited opportunity to shape the form of the jury. From a large group of citizens who have been called to jury duty on the day of your trial, a court official will draw six names by lottery. These six people are brought to the front of the court room. You and your lawyer learn their names, their addresses and their form of employment. The lawyers are not allowed to question the potential jurors, other than to clarify any ambiguous information contained within the three subject matters previously identified. At that point, each lawyer can challenge no more than four of the selected candidates. A “challenge” means that the lawyer disagrees with the inclusion of the candidate and the candidate is dismissed from jury duty. For each challenged candidate a new name is drawn by lottery from the pool of jurors in the room. It is a relatively short process, but nonetheless, a very crucial process.
Your trial will either start that day, or on a day to be identified later by the trial co-ordinator. If your particular court house is busy and there are insufficient judicial staff members to hear your matter within two weeks following the selection of your jury, your entire case will be struck from the trial list and placed back onto the list of potential trial matters. You are then back in the waiting game and will be assigned a new date for trial in the future. If the judicial resources are available, then your trial will start on the date assigned by the local trial co-ordinator.
A jury trial starts with presentations made by your lawyer and the opposing lawyer to the judge without the jury present. There are usually a number of preliminary issues that the judge needs to assist with and which require rulings, such as the inclusion of particular evidence or witnesses. Only once those preliminary issues are dealt with will the jury be brought into the court room. The trial judge will generally welcome the jury and provide them with a broad and general explanation of their upcoming tasks. Neither the judge nor any of the counsel, nor any of the parties, are allowed to directly speak to the jury outside of the court room. The jury is notified of this requirement, along with many others.
It is then your lawyer’s turn to begin with an opening address to the jury, followed, most usually, by an opening address by defence counsel. As with most things that occur during a trial there are many rules which define what the lawyers can say in their opening address. The point of your lawyers opening address is to welcome the jurors to their task and, in a very general sense, provide a context for the jury so they will best understand the evidence will hear and see in your case. Most usually, the defence lawyer will also do an opening address because they will want the jury to understand that there may be a different way to look at the evidence.
The opening addresses are the only time any of the lawyers can speak directly to the jury until the end of the trial. Once the opening statements are complete, your lawyer will start presenting your evidence.
Evidence most usually takes the form of a witness answering questions and documentary information. Usually, the first witness is you, the plaintiff. This is a crucial part of each personal injury jury trial. This is the moment for which you have been preparing, often for years. With a strong lawyer and good preparation, you should be able to help the jury understand that your claim is fair and reasonable.
After your testimony, your lawyer will call on other witnesses to confirm your injuries and expand on your claims. These witnesses may include witnesses of the accident, your family members who have helped care for you after the accident, your treating doctors, and medical experts. A lawyer can successfully tell your story to the jury if they have properly prepared you and your case for this purpose from the beginning. Therefore, your interactions with each and every professional witness, and each and every lay witness, should be a positive reflection upon you and your reasonable nature.
After your lawyer has introduced all of your evidence through witnesses and through documents, and these witnesses have been cross-examined by the defence lawyer, your case will close. The defence lawyer has the opportunity to call witnesses they choose and to introduce documents they wish to establish their version of your case. At this point in the trial, the roles of the lawyers reverse. The defence lawyer is conducting the examination in chief and your lawyer is now doing the cross-examination. Although you might strongly disagree with the case presented by the defence, you are only a spectator. It is your lawyer’s role to discredit the defence witnesses and minimize the damaging evidence.
When defence counsel has finished presenting their evidence, your lawyer will have an opportunity to present reply evidence. “Reply evidence” is evidence which is necessary only to reply to unexpected evidence presented by defence counsel. It is stringently regulated by the trial judge and many lawyers choose to not present reply evidence, fearing the jury’s response to the vigorous inquiries of the judge over the necessity of the reply evidence.
Once all the evidence is presented and both parties have concluded their case, then both counsels have the opportunity to present closing submissions to the jury. The closing remarks are the last opportunity for both lawyers to speak directly to the jury. The rules on a closing address are much broader and more lenient than the rules governing the opening address. Lawyers are awarded wide latitude in the topics and the manner of address to the jury, but cannot misstate the evidence or personally attack the other lawyer or other party. Lawyers are entitled to attack the evidence of the witnesses and, in particular, the defence lawyer can attack your evidence. The defence lawyer can encourage the jury to believe that you have been untruthful as well as unreasonable. On the other hand, your lawyer is entitled to make an emotional appeal to the jury on your behalf.
The purpose of the closing address is to encourage the jury to interpret the evidence reviewed at trial in a manner favourable to the respective party’s interest.
When both counsels have finished their closing address, then it is the judge’s turn to “charge” the jury. The judge’s role is to ensure the jury understands the legal context of the issues they need to determine and to understand in detail how they are to make its decision. Finally, the judge usually provides a very general and hopefully balanced review of the evidence heard at trial. All of this is to assist the jury to work through, in a productive and meaningful manner, the questions the judge has determined they must answer in order to resolve your case.
When the judge’s charge is done, the court services officers, who charged with keeping the jury sequestered and focused on their task, are sworn. The court services officers then lead the jury to a room to consider their verdict. Civil juries are not fully sequestered while they are deliberating, unlike criminal juries. They will work a normal business day, sometimes into the evening if they choose. But they are allowed to go home at the end of the day. The jury is entitled to as much time as they want in order to arrive at a decision. Depending on the complexity of your particular case, juries can deliberate anywhere from a few short hours to a number of days.
Once the jury arrives at a verdict, they advise the court through the court services officers that a verdict has been reached. Counsel and the parties are contacted and assembled in the court room. The jury is then brought in and asked if they have arrived at a verdict. These few short minutes are probably the most stressful minutes of the entire trial. Once the judge has ensured that all jurors have arrived at a free and unbiased decision, the questions and the jury’s answers are read.
As a party to a personal injury trial, you must commit yourself to two principle tasks in order to see yourself through to a reasonable trial. First, you should pick a good lawyer and communicate with your lawyer. Your second task is to follow your lawyer’s instructions throughout the process so that the jury can hear your evidence, empathize with your position, and award you fair and just compensation for your losses.