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Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘mistrial’

Who Should Address Costs Following a Mistrial?

November 6th, 2013

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing a technical procedural issue, namely which judge should address a costs application following a mistrial.

In this week’s case (Walker v. Doe) the Court declared a mistrial on the 14th day of a Jury trial following closing submissions of counsel for the plaintiff. ¬†The Defendant sought costs and an issue arose about who was best to address this, the presiding judge for the initial trial or the judge who would ultimately oversee the mistrial. ¬†The Court held it was appropriate, in the circumstances of this case, ¬†for the initial judge to address the costs issue. ¬†In reaching this conclusion Mr. Justice Voith provided the following reasons:

[12]¬†¬†¬†¬†¬†¬†¬†¬†¬†The broad question of whether there is a ‚Äúlongstanding practice‚ÄĚ in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether ‚Äú[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried‚ÄĚ.

[13]¬†¬†¬†¬†¬†¬†¬†¬†¬†The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant‚Äôs application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed…

[24]         The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:

[61]¬†¬†¬†¬†¬† This trial was difficult for all concerned. Ms.¬†Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.

[25]¬†¬†¬†¬†¬†¬†¬†¬†¬†The foregoing comments are apposite. Notwithstanding the passage of time, my memory of the trial and of the matters leading to the mistrial remains good. My memory of many events remains vivid. Counsel for Mr.¬†Walker sought to argue that another judge, with the benefit of transcripts and the Mistrial Ruling, would be in an equally good position to address the instant application. I do not think that this is so…

29]¬†¬†¬†¬†¬†¬†¬†¬†¬†I do not consider that another trial judge could address such submissions as readily or as easily as I could. This is so even if extensive transcripts from the first trial were ordered…

[30]¬†¬†¬†¬†¬†¬†¬†¬†¬†I consider that the foregoing considerations remove this application from the ambit of the ‚Äúgeneral rule‚ÄĚ referred to in¬†Joy¬†and that I should hear the defendant‚Äôs application.

[31]         I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.


BC Court of Appeal Overturns $12 Million Jury Verdict

March 10th, 2011

In a not unexpected development, the BC Court of Appeal released reasons for judgement today (Ciolli v. Galley) overturning a Jury Verdict awarding just over $12 Million dollars in damages to a Plaintiff who was injured in three separate motor vehicle collisions.

Following the Jury verdict the Defendants applied for a mistrial but the presiding Judge dismissed the defence motion.  The Defendants appealed the Jury Verdict arguing, amongst other reasons, that the trial judge failed to give appropriate instructions to the jury.  The BC Court of Appeal agreed and ordered a new trial.  In doing so the Court provided the following reasons:

[21]¬†¬†¬†¬†¬†¬†¬†¬†¬†As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury‚Äôs awards were without foundation or wholly out of proportion to the plaintiff‚Äôs losses.¬† I have already noted that the trial judge‚Äôs many references to the damages to which Ms. Ciolli was ‚Äúentitled‚ÄĚ may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff‚Äôs claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified.¬† Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses.¬† The law is clear that a trial judge‚Äôs failure to so instruct a jury constitutes error: see, e.g.,¬†Bell v.¬†Stubbins¬†(1991) 7 B.C.A.C. 177 at paras. 10-17;¬†Halliday et al. v. Sanrud¬†(1979) 15 B.C.L.R. 4 (C.A.) at 9.

[22]         It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court.  The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect.  (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.)  With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year.  It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.

[23]         The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.

Paragraphs 24-31 of the Judgement are also worth reviewing for the Court’s ‘obiter‘ discussion of when a trial judge should and should not declare a mistrial following an¬†inordinately¬†high Jury Verdict.


More on BC Injury Claims and Improper Closing Arguments – Appealing to Juror's Emotion

June 14th, 2010

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case. ¬†There are limits, however, on the types of statements a lawyer can make to a jury and if these¬†boundaries¬†are overstepped a mistrial may occur. ¬†Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.

In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages. ¬†During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office. ¬†At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.

The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“. ¬†The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone. ¬†Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury. ¬†In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors‚Äô sympathies divert them from this important responsibility. In that regard, see¬†Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in¬†Hesse v. The Saint John Railway Company¬†(1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel's] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.


Mistrial Declared for Opening Statement that Went "Over the Line"

June 17th, 2008

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.  Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.  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.

Do you have questions about this case or an ICBC injury claim? If so click here to arrange your free consultation with Victoria ICBC claims lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)


 

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