Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury. In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident. In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert. The expert was vigorously cross examined. In closing arguments to the Jury the expert was compared to Carnac the Magnificent. In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:
 The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere. The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate. The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule. Counsel for the Plaintiff accepted this and did not resile from it. If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…
 The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate. The defendant in argument described the Karnac figure as a “wizard buffoon”. Counsel for the Plaintiff agreed. He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.
 Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it. I prevented counsel from proceeding. I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions. I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert. That attack may well use some “drama and pathos”: Cahoon at para. 18. I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous. It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness. In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.
A mistrial was eventually declared. The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue. Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.
Tag: closing arguments
Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury. In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
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:
 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.
 The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ 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.
 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.
 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.
 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.).
 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.
Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.
By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents. Her matter went to trial and a Jury awarded $44,000 in total damages. The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.
The BCCA granted the appeal and ordered a new trial. In doing so the Court made some useful comments about the above areas of law.
1. In Trust Claims
Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits. If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.
In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim. The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim. The Court provided the following useful summary of the law:
 Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.” In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484. The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra. Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.
 The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards. In the words of Gibbs, J.A.:
… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case. [At para. 19; emphasis added.]
I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services. A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis. This was recognized in Ellis in the quotation reproduced above. Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury. Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event? Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss. The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.
 The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family. As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made. It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her. The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis. Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches. At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business. The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter. The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis. Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.
 In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof. I would allow the appeal on this ground.
2. Document Disclosure Obligations
The second area highlighted in this case relates to document disclosure. In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff. They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial. In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.
The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination. On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff. Specifically the BCCA said as follows:
 Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege? In my opinion, none of the items was sufficiently described for this purpose. Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case. With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when. Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document. Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26. (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).) If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.
 Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents. In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted. In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient. The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.
 It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’. If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings. Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired. At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule. I would therefore allow the appeal on this basis as well.
This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference. I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.
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.
Reasons for judgement were released today dismissing a Plaintiff’s appeal of an award of $0 as a result of a BC motor vehicle accident.
The Plaintiff was allegedly injured in a rear end accident. He sued claiming on-going consequences from a closed head injury and a whiplash type of soft tissue injury to his neck and back. After a 5 week jury trial in 2007 the jury found the other motorist at fault but awarded $0 as they found that this collision did not cause any injury to the Plaintiff.
The Plaintiff appealed for various reasons including a claim that the defence lawyer made ‘improper prejudicial statements‘ in his closing argument to the jury.
The BC Court of Appeal Dismissed the case finding that while some of the statements ‘may have been cause for concern (plaintiff’s counsel) took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address.’ In dismissing the appeal the Court summarized the law as follows:
 This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial. In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:
 In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions. Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.
 It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.). In R. v. Jacquard,  1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal. Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”. [Emphasis of Finch C.J.B.C.]
 In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.
 In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice. That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.
 The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial. The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all. (the Plaintiff’s) counsel said nothing other than what he said in reply. If he had sought it, some instruction might have been given. It was apparently thought to be unnecessary.
This case, and others like it, go to show that it is difficult to succeed in an appeal when alleged improper conduct is not complained about when it occurs at the trial level.