Adding to this site’s archives of judicial commentary on the boundaries of opening statements, reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, finding that comments addressing the Plaintiff by his first name and further discussing his wife’s miscarriage crossed the line.
In the recent case (Demello v. Chaput) the Plaintiff was involved in a series of collisions. During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made: His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.
Madam Justice Maisonville found these comments crossed the line and discharged the jury. In doing so the Court provided the following reasons:  I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.  I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.  The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.  In all of the circumstances, I order that the jury in this matter be discharged.  I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.
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:
In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.
 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.
The court continues:
 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.
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.
In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.
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.
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.
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.
If you would like further information or require assistance, please get in touch.
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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