Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation
Recently I highlighted judicial criticism of the practice of not calling the Plaintiff as the first witness in an injury trial. You can click here to read Madam Justice Humphries previous criticism of this practice and here for the comments of Mr. Justice McEwan.
Last week further reasons for judgement were released addressing this practice. In last week’s case (Gustafson v. Davis) the Plaintiff was injured in a motor vehicle collision. Several witnesses took the stand before the plaintiff testified. In criticizing this practice Madam Justice Humphires echoed her previous comments and provided the following feedback:
[112] Ms. Bartholomew, Ms. Hunter, Mr. Sivertson, Mr. Gustafson, a teaching colleague, and Ms. Gustafson’s family practitioner, Dr. Verbonac, were called before Ms. Gustafson went into the witness box. Much of their evidence was hearsay and consisted of subjective complaints and accounts by Ms. Gustafson to them. As the court mentioned several times to counsel for Ms. Gustafson, it would have been helpful to hear her first, before the substance of her evidence was given second hand by other witnesses while she listened to it and to the issues that arose during cross-examination.
[113] Aside from their recounting of things Ms. Gustafson had told them, these witnesses also had their own observations to make. While their observations of Ms. Gustafson are not hearsay, that evidence was given without the benefit of Ms. Gustafson’s presentation and her first hand testimony, and was difficult to put into a meaningful context, not having heard her testify.
[114] Counsel has the responsibility to present his case as he sees fit and the court understands if obstacles are created by scheduling difficulties for expert and out of town witnesses, or other unavailability. However, from the point of view of a trier of fact, it is not only frustrating and even confusing to listen to evidence without a context, it can have an impact on the value of all of the evidence.
[115] The practice of calling the plaintiff first is longstanding and is a common theme in advocacy texts for reasons that resonate with, and are often written by, trial judges. I refer, for example, to § 25.8 of Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. (Markham, Ont: Lexis Nexis Canada Inc., 2007):
Unsurprisingly, if a plaintiff is called as the first witness for his case, he tends to have more credibility than if he is called as the last witness, because of his opportunity, in the latter situation, to tailor his evidence to the evidence of the witnesses who have gone before him.
and to s. 8.20 of the British Columbia Civil Trial Handbook, 2nd ed. (Vancouver: The Continuing Legal Education Society ofBritish Columbia, 2005):
In many cases the plaintiff will be called first, such as in a non-catastrophic injury case or a family case. One reason for this choice is that the decisionmaker usually wants to see the plaintiff to get a sense of the case, and may pay less attention to other witnesses if impatiently awaiting the plaintiff.
and to Donald S. Ferguson, ed., Ontario Courtroom Procedure (Markham, Ont.: Lexis Nexis Canada Inc., 2007) at p. 815:
It is common for counsel to call their party as their first witness to avoid any submission that the party may have tailored his or her testimony to that of other witnesses.
[116] If persuasion is the objective, and if it rests largely on the credibility of the plaintiff, counsel might give consideration to the practical and sensible course suggested by experience and this common sense advice.
Given the preference of some injury lawyers to follow this practice the Trial Lawyers Association of BC sent a request to Chief Justice Bauman asking if this was a ‘wide-spread concern‘ for trial judges and if so invited the Chief Justice to a professional development seminar to discuss the concern. Mr. Justice Bauman responded “I have not heard it suggested that this is a matter of general concern among trial judges on this Court…I do not believe a general discussion of the issue at this time is warranted but I thank you for bringing the issue to my attention”.
I am happy to provide a copy of Mr. Justice Bauman’s letter to anyone who contacts me and requests one.