Mistrial Declared for Opening Statement that Went “Over the Line”
In March, 2008, Mr. Justice Cole declared a mistrial after he found that the Plaintiff’s lawyer went “over the line” in his opening statements. The judges oral reasons were released in writing today.
Negligence (fault for the accident) was admitted by the defence lawyers. The Plaintiff lawyer, in the opening address to the jury, stated that ‘the defendant must pay for breaching the rules of the road.’ and referred to the defendant as falling asleep at the wheel of his car, causing the accident‘. The court characterized the general theme of the opening comments “such as to create an atmosphere of sympathy for the Plaintiff.”
The court concluced that the Plaintiff lawyer ‘did go over the line‘ and that ordering a mistrial is the ‘only fair thing to do.’
The result of the mistrial is that the jury is dismissed and the matter has to be reset for trial on a later date. Such a result brings with it delay and expense, commonly referred to as the ‘twin evils’ in the BC civil justice system.
Reading this case made me wonder whether jurors would be inflamed by such opening statements. Personally I struggle in thinking that a reasonable jury would be inflamed to such a degree by this statement that their whole view of the case would be unjustly prejudiced.
Even the judge acknowledged that ‘no one can ever tell’ if this statement caused damage to the juries ability to fairly hear the case.
In BC it is improper for lawyers to talk to jurors after the fact and poll them about their decision.Â Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.Â This has been severely critisized by many including fellow blogger and former BC Supreme Court judge John Bouck.
Since the jurors can’t be polled I thought I’d ask my readers. What do you think? If you were sitting on a jury involving an ICBC injury claim, and the plaintiff’s lawyer told you that the Defendant fell asleep at the wheel and ‘must pay for breaching the rules of the road’ would your judgment be compromised? Would your ability to fairly value the plaintiff’s injuries be compromised? Would you feel a need to punish the defendant by awarding the Plaintiff an overly generous amount of compensation?
Please feel free to leave comments or e-mail me privately.
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