In North America, the jury trial is almost sacrosanct. Even lawyers who have never tried a case before a jury will argue passionately that a jury trial is every litigant’s right and should be preserved at all costs.
Over the past several years there is a push by the judiciary to find ways to decide disputes more efficiently and at less cost. One target for those looking to make the civil justice system more efficient and cost effective is the jury trial. Whether you are passionately in favour of the jury trial or advocating its demise, both sides must agree that a jury trial significantly increases the length and costs of a trial.
Personal injury and medical malpractice cases are becoming more and more complex. For those opposing jury trials for civil cases, the question being asked is whether it is reasonable for 6 citizens off the street with no medical or legal experience or training to decide cases that can forever alter a person’s life? For example, we would never allow 6 untrained citizens to make medical care decisions and yet we allow this type of decision-making for legal cases. On the other hand, those in favour of jury trials argue that 6 average people from the community are just as well-positioned, or even better positioned than a trial judge, to make findings of fact based on the evidence. Further, some pro-jury advocates argue that judges may become cynical after many years on the bench and a jury provides litigants with a more realistic view from the community.
Alan Shanoff, a legal columnist for the Toronto Sun has written two recent articles on the issue of juries in civil cases. In his first article, he wrote in favour of abolishing juries in civil lawsuits. The reaction from lawyers was overwhelmingly negative. He has written a further article to address the criticism that he received after the first article. I must admit that I was a lawyer who did not agree with Mr. Shanoff’s first article and his argument that juries be abolished. After reading his second article, while I’m still not convinced that the jury should be abolished for all civil cases, I see some real merit to his arguments.
Mr. Shanoff reminds us that Quebec and the Federal Court of Canada don’t use juries in civil cases. In England, juries do not hear personal injury cases. Some states and territories in Australia no longer allow civil jury trials and where jury trials are allowed for some cases, they are not allowed for motor vehicle litigation. Just because other jurisdictions have severely limited or outright banned juries for personal injury cases does not mean that we should follow suit. However, we may have something to learn. Instead of simply dismissing the suggestion that jury trial be banned we should take a careful look at the “why” behind jury trials. Leaving aside tradition, are jury trials helpful for most personal injury clients? The answer is not clear cut.
Unfortunately, the average juror in North America has been convinced by large corporations and insurance companies that too many people are suing for non-existent or very minor injuries. The public has been told that runaway lawsuits are driving up our insurance rates, increasing our taxes and costing us all money. The result is a potentially jaded jury pool with little ability to objectively hear and impartially evaluate evidence in a personal injury action. Indeed, the defence bar is well aware that juries pose a greater risk for plaintiffs than for defendants. Mr. Shanoff quotes former associate chief justice Coulter Osborne, author of the civil justice reform project report where he wrote:
“…[it is an] unfortunate reality that insurers in most negligence actions require their counsel to deliver a jury notice.”
Justice Osborne stated further in his report that serving a jury notice is part of a defence strategy “…to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs.”
When you have a trial before a judge (a ‘”bench trial”), there is some element of certainty. While no result can be guaranteed, you can at least tell your client that the judge will be required to follow past case law and that there is some predictability of the result. A jury trial is a crapshoot. Further, in a bench trial, the judge is required to provide detailed written reasons to support her findings of fact and how she arrived at her decision. A jury is not under the same obligation. The result is that if a judge makes a mistake there is the viable option for an appeal. There is little opportunity to appeal a jury verdict.
The fact that jury trials often favour insurers and corporate defendants in personal injury cases is not a secret. Mr. Shanoff quotes one senior defence counsel as stating: “If the government decides to abolish juries then I would suggest people should get ready for their insurance premiums to double.” This sentiment is borne out in practice. I along with most other plaintiff personal injury lawyers know that in almost every case defendants file a jury notice.
On the other hand, there are many cases where juries do understand the evidence and reach fair and reasonable decisions. Further, juries are not constrained by the common law cap on general non-pecuniary damages. For many cases juries may award more than the cap limit which allows for the evolution of the case law and can potentially lead to higher overall damages.
There is no right or wrong answer. Our organization of trial lawyers, OTLA, has always advocated for juries for all personal injury actions, without limitations. This remains the official position of OTLA. I agree that the default position should be jury trials for most personal injury actions. However, in my personal opinion , there is room to modify the current system. One possibility may be to prohibit jury trials for actions in the Simplified Procedure. This would fit with the overall goal of Simplified Procedure to resolve matters expeditiously and at a lower cost. I also think that the trial judges should be given more discretion to strike a jury in more cases where the issues are complex and/or where a party is unlikely to get a fair trial. There will always be a role for juries in personal injury cases. But as trials become more complex and expensive, to ensure justice for our clients maybe there is a role for more personal injury trials to be heard without a jury. We should at least be looking at the alternative and not automatically reject the notion that for some cases juries are not the best option for our clients.
Contributed by Kris Bonn, an OTLA Director and lawyer practising with Bonn Law Office PC in Trenton, ON.