Lawyers Opinions, Mistrials and ICBC Injury Claims

US Trial Lawyer Elliott Wilcox recently wrote a great article on why “I” is one of the most dangerous words for a lawyer to utter in court during a jury trial.  The short answer is because it is inappropriate for lawyers to share their personal opinion as to the merits of a case.  When a lawyer uses the word “I” there is a good chance a personal opinion is going to follow.
Reasons for judgement were released today by the BC Court of Appeal demonstrating the repercussions of counsel sharing their opinions during jury trials.
In today’s case (Joy v. Atkinson) the Plaintiff’s lawyer made several comments during his opening statement to the jury which the ICBC defence lawyer took objection to.  After hearing submissions in the absence of the jury the trial judge granted a motion for a mistrial (click here to read my previous post about the trial judgement).
In dismissing the appeal the BC Court of Appeal said the following about lawyers sharing their personal opinion of the merits of the case in jury trials:

[20]          Whether the plaintiff’s argument is otherwise sound need not be decided because there is a further aspect of counsel’s opening that is of particular concern.  Counsel expressed his personal belief in the strength of the plaintiff’s case when he told the jury “we had to satisfy ourselves that Mr. Joy’s injuries are real, serious, and permanent” and that “Geno Joy has and will continue to suffer real harms and losses now and into the future”.  In my view, there is no doubt this was clearly an improper statement.  Counsel acknowledged that to be the case in submissions on the application for a mistrial.  He was in effect giving evidence, albeit inadmissible evidence that could never be challenged, about the plaintiff’s injuries and his losses. 

[21]          Counsel’s suggestion before the judge was that any damage done could be corrected by a jury instruction or what he referred to as a “rebuke”.  But no meaningful suggestion as to what that instruction might be was made nor is one advanced now.  I am unable to see what instruction the judge could have given the jury that would have afforded the defence any confidence counsel’s expression of his satisfaction with the plaintiff’s claim would be ignored.  The jury had been told counsel had satisfied himself – he knew, apparently by investigation – the injuries suffered which the defence was challenging were real, serious, and permanent and they had caused, and would in the future cause, real losses.  That was not an assertion each member of the jury could be expected to completely ignore no matter what they were told, and it bore directly on the fairness of the trial.

[22]          The judge did not refer to this part of the opening statement in the reasons he gave for declaring a mistrial but, in my view, it is fatal to the success of this appeal.  It cannot now be said there was no sound basis for a mistrial.