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  • What A Civil Jury Doesn’t Know

    Jury trials can be risky ventures for Ontario accident victims, especially in Ottawa.  Insurance companies often choose juries because they believe that juries are harder on injured plaintiffs than a Judge would be.   For that reason most plaintiffs choose, if at all possible, to settle their cases out of court.  Having said that, sometimes a plaintiff has to stand up for himself or herself and push forward to court.  Having a law firm that is willing to do that for you is very important.

    Part of the issue with jury trials is that for different legal reasons, jurors can be told some information, but not other information.

    For example, in a car accident case jurors cannot be told that there is an insurance company who is defending the at-fault driver and who will pay out any judgment.  Often jurors are left thinking that a poor (albeit negligent) driver will be left with a large amount to pay when of course that is virtually never the case.  Nobody would do a significant trial against a defendant who could not pay a judgment.

    There are rules about how many expert witnesses a party may have.  For example, the injured plaintiff may have multiple doctors treating her.  However, only a few will be permitted to give opinion evidence.  That means that even though many doctors have written opinions on how and why the injuries are related to the accident and not some pre-existing condition, they are not allowed to give “opinion” evidence so they cannot comment on the cause of the injuries or impairments.

    There are rules about what type of information can be used to cross-examine an expert witness.  For example, there may be multiple previous reported cases where a defence expert has been harshly criticized by other courts for being “biased”, and yet the cross-examining lawyer is not permitted to raise these cases in front of the jury.

    The jury cannot be told about what other, similar plaintiffs have been awarded for pain and suffering.  Although the lawyers can suggest a range in their closing statements, the lawyers cannot show the jury case law precedents that support an appropriate amount of damages.  The jurors have no idea what an appropriate range is based on established case law.  They have to pick out of the air.

    The jury cannot be told there is a deductible in car accident cases.  For cases where the general damages are under $100,000 (indexed to inflation), there is a $30,000 deductible (also indexed).  In other words, any award for pain and suffering under $30,000 is actually an award to the plaintiff of zero.

    The jury does not know that apart from its verdict, the judge decides independently whether there is a serious and permanent impairment of an important function.   Where the motion result does not match the verdict result, it is very confusing for the injured plaintiff.  The judge clearly believes the plaintiff  has a sound case, but the jury does not.

    The jury cannot know what the lawyers did to try to settle the case before trial or whether offers to settle were exchanged or what those offers to settle were.

    All of these factors, and many more, make a jury trial a gamble for a plaintiff who is looking for fair compensation.

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