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:
 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.
 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.
 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.