The Role of the Jury in Personal Injury cases
Jury lists are assembled from voter registers and several times a year several hundred people are randomly selected.
In the event that claim for damages arising as the result of a personal injury caused by a motor vehicle accident or some other incident, and if it proceeds to trial, the trial will most likely be held before a Jury composed of 6 members. Jury lists are assembled from voter registers and several times a year several hundred people are randomly selected and summoned to attend before the court after they receive a Jury Notice.
A large number of voters will attend at one time to be part of a Jury Panel. The size of the Jury panel will vary depending on the number of cases that are scheduled to proceed to trial. On the day that the Jury is selected, names will be drawn and individuals will be selected for consideration for a particular case. A number of people will be excused from Jury duty by the Judge presiding over Jury selection for a variety of reasons including, health, family responsibilities, financial hardship, travel plans and other issues.
The lawyers conducting the case will have information about each Juror from the Jury Panel List which will be limited to residential address and occupation. They are not permitted to ask any questions of prospective Jurors and are given a limited number of objections. When 6 are selected the case will be ready to proceed to trial when it is called by the court to proceed.
While serving in a Jury can be intimidating for many individuals they will be provided with instruction by the presiding Judge as to how they are to conduct themselves in the performance of their duty. They will also, during the case and at the end of the case, be given instructions relating to possible outcomes of the case and they may be given direction with respect to matters related to evidence.
Typically a trial by Jury in a personal injury case would take between 5 and 10 days to complete as there would be a number of witnesses the Plaintiff, possibly the defendant, lay witnesses and expert witnesses.
The Insurance Act provides for claimants to be compensated for pain and suffering only if they can establish that they have suffered permanent and serious impairments that significantly impact many of their activities of daily living. Lay witnesses are people who have personal knowledge of the Plaintiff, ideally before and after the accident and who can provide information based upon their observations about how the Plaintiff's activities of daily living (from a recreational, educational, employment, or social aspect) have been impacted by the impairments suffered in the accident. These witnesses are very important in the outcome of the case because their evidence is nonpartisan i.e., they are not paid to provide an opinion and their evidence can be persuasive as they are just ordinary people talking about how their friend, relative or co-worker has changed as the result of the injuries from an accident.
Most personal injury trials involve a number of expert witnesses retained by both the Plaintiff and the defence. These can include specialists, treating doctors and accountants and sometimes engineers. The involvement of experts in personal injury trials significantly increases the expense to the parties and can make the issues in the trial complicated.
The primary task of a Juror is to assess the credibility of the evidence of the parties and determine an appropriate outcome. Five of 6 Jurors must be in agreement in order to render a verdict. Deliberations are confidential and conducted in private. It is, in fact, a criminal offence to discuss Juror deliberations outside the Jury room. It is difficult to predict what the outcome will be following a Jury trial and the involvement of the Jury adds a certain element of risk to the matter.
The involvement of a Jury in the trial of a personal injury claim is something that has been eliminated in many jurisdictions. It is difficult to understand how being injured in a car accident can become a matter so complicated that a number of experts are required to assist in advancing the claim. This is a process that makes it exceedingly expensive to proceed with a claim for damages for personal injury. It is also difficult to understand how a Jury can be expected to assess claims that are so medically complex that they require testimony from multiple experts.
The trial of a personal injury case by Jury is undoubtedly a gruelling and daunting task for the Plaintiff and the Jurors. The defence is generally a large insurance company. There may or may not be an insurance representative in attendance with defence counsel at trial.
In my opinion, trial by Jury is another strategic advantage mainly in favour of the insurers which creates a further disparity in an already unequal playing field. From a personal perspective, it makes trial a very intimidating process for the Plaintiff who is essentially on trial to prove that his or her injuries are legitimate. Keeping in mind that most Plaintiffs have been injured in accidents that were not their fault, this can be a demeaning process. Further we have a loser pay system and this process could not be any more expensive with cost awards following this type of trial easily being in the $100,000 range with the loser having to pay the costs of the winner. Recently, there is insurance that the Plaintiff can purchase to be protected against a cost award in the event that their claim is unsuccessful.
A decision to proceed to trial by a Plaintiff is not something to be taken lightly in view of the financial, time and emotional investment that will be required. Further in my view given the personal nature of the claim, the Jury role of the Jury in this type of case should be eliminated both in the interests of treating the Plaintiff more compassionately and in the interests of reducing legal expense.
If you have any question about either of these pointers please do not hesitate to give me a call. I welcome your call on my direct line 519-497-7421.
Lisa Morell Kelly,
Direct line 519-497-7421