Opening Statement Visual Aid Admissibility Should Be Canvassed At Trial Management Conferences


Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.
In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision.  Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement.  The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference.  Madam Justice Brown agreed and refused the presentation from being presented to the Jury.  The Court provided the following reasons:

[4] In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.

[24]      The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present.  Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.

[5] The court continues:

[41]      In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000).  Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.

[6] I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.

[7] In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.

[8] At para. 9, Mr. Justice Macaulay said:

Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.

As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference.  The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.

[9] Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence.  The Power Point would need to be modified before it could be used before the jury.  However, the Power Point was delivered too late to the defendant and to the court to permit this to be done.  As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed.  In this case, there was simply no time available to deal with this problem.

bc injury law, Madam Justice Brown, Moore v. Kyba, Opening Statements, power point, Rule 12, Rule 12-2

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ERIK
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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.

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