This is the fourth instalment of Arguably the Best, our year-long series on improving your litigation skills.
“A jury trial is a fight and not an afternoon tea.”
— Riddell J. in Dale v. Toronto R.W. Co., [1915] O.J. No. 49
You’ve got a civil jury trial coming up, but you’ve never done one before. Jury trials can be intimidating for practitioners of all levels of experience, but they can be equally exciting. There are many excellent resources on communication, juror bias, strategy, and evidentiary issues. Thus, I have decided to highlight just a few of the considerations that come into play when getting geared up for a civil jury trial.
Consider a focus group
Members of the jury pool likely do not think about the evidence or the issues as lawyers do, and so some counsel convene focus groups/mock juries to get additional insight into their case. A focus group can help counsel identify strengths and weaknesses of the case (the facts and evidence), and also assist in identifying ways of presenting their case (opening remarks, overcoming bias, inoculating jurors).
You could use a professional to set up a focus group, but lawyers can also do it themselves more informally. The group can be diverse, or meet specific guidelines set by counsel. The group should be presented with both sides of the case, and participants should not know which side you are actually acting for in the matter. Make opening statements and provide summaries of evidence, including expert reports. Leave the group alone to deliberate but videotape the deliberations so you can get some insight from them.
Connect with the jury
Connecting with the jury is important throughout the entire trial. The jury is typically selected the morning of the first day of trial, and in most cases, the trial starts immediately following selection. Be conscious that from the moment counsel (and the parties) enter the courthouse, the jury pool is watching.
Connecting with the jury in the courtroom could mean standing close to the jury when questioning witnesses. (This will also help connect the witness with the jury as well.) If you are allowed, personally hand exhibits to jurors. Counsel should also make eye contact with the jurors while make opening and closing submissions.
Pick experts wisely
Some experts are great on paper, but may not present well in front of a jury. Selecting experts typically begins years before the trial. Consider the following when picking your experts:
• Can the expert make complicated matters seem simple?
• Will the expert be able to connect with the jury?
• What is the expert’s personality? Does he or she appear overconfident, nonchalant, or authoritative?
• Does the expert have “skeletons in the closet” which will be fodder for cross-examination?
Use demonstrative aids to make sure jurors understand scientific and/or medical evidence. Effectively using aids can turn your expert into a reliable teacher for the jurors. Ensure your expert is comfortable using the aids, otherwise, they will not be effective.
The trial judge matters
Firstly, a jury often takes its cues from the judge. Jurors will be watching how the judge reacts to the evidence and witnesses, and how he or she reacts to the lawyers. Jurors will take notice of whether the judge appears interested and whether he or she is taking notes. Remember that being admonished by a judge can really leave the wrong impression with jurors.
In British Columbia, s. 22 of the Jury Act, RSBC 1996, c. 242, permits the presiding judge to allow a verdict of 75 per cent of jurors if the jury does not reach a unanimous verdict within three hours of the start of deliberations. Thus, even when the jury renders a verdict, the judge can have a significant impact on the outcome.
Finally, if for any reason the jury is dismissed, it could be left to the judge to render a judgment.
Dos and don’ts of opening and closing submissions
The balance you should be aiming to strike in opening submissions is to be persuasive, without advocating. In the closing, it is to advocate without getting too personal.
Overt advocacy is a style, but so too is a more subtle approach. Should you have anxiety about running your first jury trial, remember it is likely the juror’s first trial too. You can help them understand their role — to call upon their sense of justice and to highlight the important role they play in applying justice. Plaintiff counsel’s opening, in particular, is an opportunity to inoculate the jury early on. Everyone has skeletons in the closet and all cases have weaknesses. Take the opportunity to humanize your client early on, to diffuse any attempts to criticize later by opposing counsel.
Here are some things that may be considered improper in opening remarks, depending on your jurisdiction:
• Remarks that are counsel’s personal opinions about the case.
• Remarks that include facts that cannot be proven on the evidence to be presented.
• Remarks regarding the plaintiff or defendant’s credibility.
• Remarks that tend to arouse hostility or appeal to juror’s emotions.
• Remarks about matters that are irrelevant to the case.
• Remarks about what witnesses are “going” to say (rather than what witnesses are “expected” to say).
• Remarks that are intended to prejudice the jury.
• Remarks that are purely argumentative.
• Remarks that seem to put the defendant on trial or reverse the onus of proof.
• Legal arguments.
While counsel is allowed a little more room to advocate in closing remarks, there are still areas to steer clear of:
• Remarks that tend to arouse hostility or appeal to juror’s emotions.
• Remarks that invite the jurors to place themselves in the position of a party.
• Remarks that are counsel’s personal opinions about the case.
• Misstatements of the evidence or counsel giving evidence (such as going beyond the evidence).
Contribute to the charge to the jury
In British Columbia, the Continuing Legal Education Society of British Columbia’s Civil Jury Instructions is the go-to resource regarding the charge to the jury. In CIVJI’s introduction, one of the main purposes is stated to be “to preserve and enhance the process of civil jury trials by making information about the process (particularly charging the jury) more readily available.”
CIVJI should typically be supplemented by research. For instance, depending on the legal issues and facts, counsel may wish to incorporate language from a leading appellate decision. If counsel is not invited to make submissions, do not hesitate to ask if you can. Lawyers should be prepared with draft wording that can be incorporated into the charge, and make submission on point to rationalize the same.
Framing questions to the jury
Ultimately, questions must be put to the jury to answer, which will be their verdict. This is not specifically governed by statute in all jurisdictions. For instance, in Newfoundland and Labrador, s. 34 of the Jury Act specifically directs the judge in respect of the questions, while in Ontario (Juries Act, R.S.O 1990, Chapter J3) and British Columbia (Jury Act, RSBC 1996, Chapter 242) the legislation is silent.
Considerable thought should be put to how you will frame your questions. The way you present your questions directly affects how jurors will consider the evidence and decide the case.
Conclusion
The right to a trial by jury is often described as one of the cornerstones of our justice system. When it comes to jury trials, the outcome is entirely unpredictable. Part of this is the inherent misconceptions about lawyers and the justice system. While they can be nerve-racking, civil jury trials can be fulfilling for counsel, especially with the right preparation.
Krista L. Simon is a personal injury trial lawyer at Hammerberg Altman Beaton & Maglio LLP in Vancouver.
