In our justice system, we give jurors profound responsibility and power when we entrust them to render verdicts in legal disputes. In criminal cases, jurors must decide the guilt or innocence of an accused person.
In personal injury actions, we assign jurors the task of weighing the evidence presented in court to determine whether the defendant was negligent. If they do find there was negligence, the jury must then go on to decide not only whether that negligence caused the plaintiff’s losses, but also what those losses are worth.
These are grave responsibilities and reflect that, as a society, we trust jurors to take their duties seriously and to render justice in accordance with their obligation and juror oath.
The problem in civil cases is that, despite the trust we put in jurors, we do not tell them the whole story or the context in which their decisions are being rendered. By depriving them of this information, we are acting contrary to the trust we otherwise place in their decision-making ability.
I WISH I COULD TELL THE JURY THAT:
1. Insurance is almost always involved – but we can’t talk about it!
Most cases that get to trial in Ontario involve a defendant who has insurance, which will respond to any damages awarded by the jury. The insurance policy is also paying for the defendant’s lawyer, as well as any expert witnesses retained by the defendant. Despite these facts, the lawyers are not allowed to mention insurance to the jury. The failure to disclose this highly relevant information can give the unfortunate (and false) impression that the defendant is personally paying for the lawyer and will have to pay for any amount awarded by the jury. This can create a problem if the defendant is particularly sympathetic, because it leaves the jury with a faulty appreciation of how any compensation they award the plaintiff will be paid.
2. The Plaintiff may not get the money the jury awards!
Unbeknownst to the jury, the defendant and his/her insurance company do not necessarily have to pay the amount of compensation awarded by the jury in motor vehicle cases. Jurors are not told that any money they award for pain and suffering will be cut by approximately $39,000 pursuant to the Insurance Act. Unless a jury awards more than $129,000 for pain and suffering, this hidden “deductible” automatically kicks in, lowering the amount the insurance company must pay. These amounts are subject to annual indexation as well.
3. The Threshold!
The jury may determine that the Plaintiff is entitled to compensation based on the permanence and severity of the injuries sustained in the collision. However, the jury is never told of the “threshold”, which is a complex legal construct that determines whether the problems (impairments) that flow from the Plaintiff’s injuries are severe and permanent enough to even qualify for damages in the first place.
4. The Trial isn’t over after the jury leaves!
After the jury renders its verdict and leaves the courthouse, the trial judge often completes a further review of the evidence to determine the nature of the impairments. This further step in the judicial process can create a challenge. There are now essentially two decision makers (the jury and the judge) who are not communicating about the fundamental decision that is being made about the Plaintiff.
As part of this review, the judge may consider the jury’s verdict and try to interpret, based on the amount awarded by the jury, how serious and permanent the jury felt the Plaintiff’s impairments were. The problem is that the judge knows nothing else about how the jury came to its verdict beyond the dollar amount that is awarded. The judge does not ask the jury for the reasons behind their decision.
LET’S PLACE TRUST IN OUR JURIES
At the end of the day, we should trust that jurors will take their duties seriously and can render their verdict with the full knowledge of the system in which we operate. Jurors dedicate themselves to this most crucial responsibility of citizenship They promise to act with impartiality and fairness. So, why can’t we trust them fully and give them all of the information they need to come to a just decision.