Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials


One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.

bc injury claims, BC Jury Trials, closing arguments, icbc trials, Improper Statements in Jury Trials, Knauf v. Chao, Opening Statements

Comments (36)

  • My spouse and i have been quite joyful Michael could do his survey while using the ideas he was given from your very own web site. It is now and again perplexing to simply happen to be freely giving tips and hints that a number of people could have been trying to sell. So we understand we have got the website owner to be grateful to because of that. These illustrations you’ve made, the straightforward site navigation, the relationships you can help create – it is all remarkable, and it’s really leading our son in addition to the family understand this subject is exciting, which is certainly really essential. Thank you for all!

  • You can definitely see your expertise in the work you write. The world hopes for more passionate writers such as you who are not afraid to mention how they believe. Always go after your heart.

  • What i don’t realize is actually how you’re not actually much more well-liked than you may be right now. You are so intelligent. You realize thus considerably relating to this subject, produced me personally consider it from numerous varied angles. Its like men and women aren’t fascinated unless it’s one thing to do with Lady gaga! Your own stuffs excellent. Always maintain it up!

  • The following time I learn a blog, I hope that it doesnt disappoint me as a lot as this one. I mean, I do know it was my choice to learn, however I really thought youd have something attention-grabbing to say. All I hear is a bunch of whining about one thing that you might fix in case you werent too busy searching for attention.

  • I’m impressed, I must say. Really not often do I encounter a weblog that’s each educative and entertaining, and let me tell you, you will have hit the nail on the head. Your thought is outstanding; the problem is something that not sufficient individuals are speaking intelligently about. I am very glad that I stumbled across this in my search for one thing relating to this.

  • Hello, I think your blog might be having browser compatibility issues. When I look at your blog in Safari, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, very good blog!

  • I simply desired to say thanks yet again. I am not sure the things that I could possibly have gone through without the type of creative concepts documented by you regarding my subject matter. Certainly was a real daunting condition for me personally, nevertheless finding out a specialised fashion you treated the issue made me to leap with happiness. I’m thankful for your work and hope that you really know what a powerful job you’re providing training other individuals with the aid of your websites. Probably you have never come across all of us.

  • Greetings I am so grateful I found your site, I really found you by mistake, while I was looking on Digg for something else, Anyways I am here now and would just like to say cheers for a remarkable post and a all round entertaining blog (I also love the theme/design), I don’t have time to read through it all at the minute but I have saved it and also added in your RSS feeds, so when I have time I will be back to read a great deal more, Please do keep up the great work.

  • I’m just writing to make you understand of the useful experience my daughter gained visiting your web page. She noticed some things, not to mention how it is like to have a great helping mindset to let many others without hassle thoroughly grasp several tricky things. You really did more than visitors’ desires. Thanks for churning out the warm and helpful, healthy, explanatory not to mention cool guidance on this topic to Gloria.

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do a little research about this. We got a grab a book from our area library but I think I learned more clear from this post. I’m very glad to see such magnificent info being shared freely out there.

  • Amazing blog! Do you have any recommendations for aspiring writers? I’m hoping to start my own site soon but I’m a little lost on everything. Would you propose starting with a free platform like WordPress or go for a paid option? There are so many choices out there that I’m totally overwhelmed .. Any tips? Bless you!

  • Hi, i feel that i noticed you visited my weblog thus i got here to “return the want”.I’m trying to in finding things to improve my site!I guess its good enough to make use of some of your ideas!!

  • Magnificent goods from you, man. I have understand your stuff previous to and you are just extremely excellent. I really like what you have acquired here, really like what you’re saying and the way in which you say it. You make it enjoyable and you still take care of to keep it sensible. I cant wait to read much more from you. This is actually a terrific website.

  • One other important part is that if you are an older person, travel insurance for pensioners is something you need to really consider. The more aged you are, the harder at risk you are for having something poor happen to you while in foreign countries. If you are definitely not covered by a few comprehensive insurance coverage, you could have a few serious challenges. Thanks for giving your ideas on this web site.

  • I was just seeking this info for a while. After six hours of continuous Googleing, at last I got it in your website. I wonder what is the lack of Google strategy that don’t rank this type of informative websites in top of the list. Generally the top sites are full of garbage.

  • It’s a pity you don’t have a donate button! I’d most certainly donate to this brilliant blog! I suppose for now i’ll settle for book-marking and adding your RSS feed to my Google account. I look forward to brand new updates and will talk about this website with my Facebook group. Talk soon!

  • Thanks for your article. I have usually seen that many people are desperate to lose weight simply because wish to show up slim plus attractive. Having said that, they do not usually realize that there are additional benefits for you to losing weight in addition. Doctors declare that overweight people suffer from a variety of diseases that can be perfectely attributed to their particular excess weight. The good thing is that people who sadly are overweight as well as suffering from a variety of diseases can help to eliminate the severity of their own illnesses simply by losing weight. You are able to see a steady but notable improvement with health as soon as even a slight amount of weight reduction is accomplished.

  • Great – I should definitely pronounce, impressed with your website. I had no trouble navigating through all tabs and related information ended up being truly easy to do to access. I recently found what I hoped for before you know it in the least. Quite unusual. Is likely to appreciate it for those who add forums or something, site theme . a tones way for your client to communicate. Excellent task.

  • You really make it seem so easy with your presentation but I find this topic to be really something which I think I would never understand. It seems too complex and very broad for me. I am looking forward for your next post, I’ll try to get the hang of it!

  • Hi, Neat post. There’s a problem with your website in internet explorer, would test this… IE still is the market leader and a huge portion of people will miss your fantastic writing due to this problem.

  • Good web site! I truly love how it is simple on my eyes and the data are well written. I’m wondering how I could be notified when a new post has been made. I’ve subscribed to your RSS feed which must do the trick! Have a great day!

  • I think this is among the most vital information for me. And i am glad reading your article. But want to remark on some general things, The website style is ideal, the articles is really great : D. Good job, cheers

  • I’ve been absent for some time, but now I remember why I used to love this site. Thanks , I’ll try and check back more often. How frequently you update your web site?

  • I’ve been surfing online more than 3 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. Personally, if all webmasters and bloggers made good content as you did, the web will be much more useful than ever before.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer