I recall several years ago, being invited to speak to a third year law school class at Osgoode Hall, about this topic. During the question period, the first student rather irately wanted to know why in the final year of law school, they had been taught absolutely nothing about this subject. I effectively ended my lecturing career at Osgoode Hall, when I blurted out the old saying, “Those who can do, those who can’t, teach”. In short, the only thing that law professors could learn about jury trials would be from case law which, of course, only speaks to errors of the trial Judge in delivering their charge, and nothing about strategy.

When I am asked about the most important characteristic of a jury trial lawyer, I usually say it is the person who goes to the refrigerator, morning, noon or night, opens the door, and when the light comes on does, a ten minute floor show.

In discussing the strategy of a jury trial, one of the points I wish to emphasize, is that an excellent non-jury lawyer is not necessarily even an adequate jury lawyer.
In the non-jury case, the cardinal rule is to go slowly, indeed, if counsel sees the Judge writing, a good lawyer will wait until the Judge finishes before going on to the next question. Without exaggeration, while non-jury cases may be quicker, because the trial Judge can cut through a lot of fluff and won’t in a jury trial, the pace of the latter cannot be laborious or counsel runs the risk of losing the jury’s attention. Such problems do not really exist in a non-jury case.

I have only seen one book on jury trials and this really did not discuss strategy. The late Edson Haines, however, wrote the forward to this book which caught my attention, about 35 years ago. In one example, the authors did a study using three separate juries, in three separate rooms, watching the same trial being done in a mock fashion. They found that over 80% had made up their minds after hearing the opening address, but before hearing any of the evidence.

This is obviously critically important information to the defence lawyer at a jury trial, who would therefore be well advised to use the option in the rules, to open to the jury right after the plaintiff’s solicitor, as opposed to waiting until the plaintiff has put in its case, and then opening as part of the defence. It also underscores the importance of opening for the plaintiff’s solicitor, and the need to prepare carefully and to grab the jury’s attention and sympathy.

The KISS rule certainly applies to jury trials – keep it simple stupid. Although we have not been permitted to talk to jurors since 1972 (which gave me six years of experience in that regard), I can tell you that unlike the detail oriented non-jury case, counsel in a jury trial should select three or four simple themes, at most, and hammer these points to the jury throughout the trial, again and again.

For the plaintiff, it will be something as simple as evidence of the condition of the plaintiff before and after the accident. That is, before the accident they were perfectly happy, healthy and industrious – after, unable to work, depressed and generally leading a miserable existence. Plaintiff’s counsel, as well as the defendant’s, has to deal with the integrity of the plaintiff as well.

The defendant will often have one of two themes. Either that the plaintiff’s evidence is unreliable, or that the extent of damages sought is excessive. Absent unreliable, the defence should probably not be in front of a jury.

Experienced plaintiff’s counsel will often try to call medical evidence before they call the plaintiff, especially in a chronic pain case, to bolster the plaintiff’s credibility before testifying. In 1992 I was able to successfully force the plaintiff to testify first, but case law since that time, has been divided rather equally. The basis of the objection by defence counsel is, of course, that evidence given by doctors regarding history received from the plaintiff, is hearsay if given before the plaintiff testifies.

The defendant will, of course, want the plaintiff to testify first, and demonstrate the unreliability of the plaintiff’s testimony and then, when cross-examining the plaintiff’s doctors or leading their own evidence, defence counsel will, as often as possible, point out the importance of an accurate history as an underpinning to any diagnosis or prognosis that the Court should accept as accurate.

Too often, plaintiff’s counsel fail to correct their doctors on inaccurate histories in their reports before trial, fearing it will diminish the settlement value. However, at trial this failure can prove deadly. Usually, the defence doctors do have an accurate history and often, when the correct facts are put to the plaintiff’s doctors on cross-examination, they will stick to their original opinions, regardless. As a defence counsel, I used to remind the jury as often as I could, of the trial Judge’s caution given in their opening remarks; they advise the jury not to discuss their opinions with each other until they have heard all the evidence. They point out that pride is part of human nature and that it is difficult to overcome once a premature opinion is expressed. They point out that human nature makes it rather difficult to withdraw from earlier positions, which have been stated openly.

I would then remind the jury throughout the trial, that doctors, believe it or not, are also human beings and may do the same thing that the Judge cautioned them about. I will use that in my opening and closing, and as frequently throughout the trial as possible.
Why do I say that a good non-jury lawyer is not necessarily adept in jury cases? Because the approach is so different as evidenced by the following four broad points:

1. The importance of broad brush strokes and repetition in a jury trial, as compared to the detailed approach in a non-jury case where repetition may also tend to anger the trial Judge;

2. If your counsel is not a people person – one who understands the way all citizens, at any socio-economic level, talk and think, and few are, then you are in difficulty. When we select our six jurors, we only know their name, where they live and what they do for a living. We are given four preemptory challenges (challenges without cause – I have yet to see a challenge for cause work in a civil case), so that we are left with our gut reaction to the demeanor of the prospective jurors, as they walk to the jury box, how they dress, and the two socio-economic indicators, their occupation and address.

If your lawyer socializes only within their own socio-economic level, they may tend to use words that jurors do not understand or identify with. These very same phrases will go over at their cocktail parties, but not with the people that we generally see on a jury. These lawyers, therefore don’t know which language to use or which buttons to push. They will also tend to go into much greater detail than should be the case.

I am not suggesting that counsel should underestimate the intelligence of a jury – simply that they know how to communicate with six people taken at random from our tax rolls.

For example, I often remind associates at my firm that slightly greater than 20% of population have a positive attitude towards lawyers. On the other hand over 80% have a positive opinion of the police. Therefore, a lawyer must be cautious before they ever consider attacking a witness that the jury probably likes.

I also remind lawyers that most cases go to trial because they are toss-ups – hard to predict the result. I ask them not to behave like lawyers. Don’t use legalisms such as, “notwithstanding” – and don’t refer to opposing counsel as, “my friend”. Both are difficult for the jury to understand or identify with.

The objective must be to get the jury – not necessarily the Judge, to identify with you as a person. The best you can hope for is for each juror to think ….”hey this guy is more like me than one of those _____________ (fill in your own blank) lawyers”. Keep in mind, jurors like most people, tend to accept what is said by those with whom they identify and with whom they have a positive gut reaction. If they perceive counsel as a “typical lawyer”, then that lawyer may be in trouble. In short, people give the benefit of the doubt to one of their own – or someone with whom they can identify.

It is also important in one’s opening, to remind the jury of how difficult your job is. Remind them that you are attempting to deal with facts and issues that you believe, will be important to them. However, remind them that each person (juror) is different from the other, and some may wish more time spent at trial on a given topic while others, would prefer less. I often say that I wish they had a button or signal they could give when they have heard enough and absent that, apologize in advance if at times points are repeated or evidence extended. It is hard enough to size up a person who engages you in conversation; a jury never speaks!

However, a good jury trial lawyer will always be mindful of the proverb that, “the mind will absorb no more than the seat can endure”.

3. Since jurors are the only triers of the facts, It therefore follows that counsel will make eye contact with the jury as often as possible. As well, it is critical to change the approach used in the preparation of your witness, especially experts who are often only used to directing their answers to a trial Judge in a non-jury trial. It is also critical to remove technical (usually medical) language from their testimony. It is hard to break old habits and when leading my witnesses I will often position myself so that the jury is between my witness and me (forcing the witness to make eye contact) and if the witness uses any word I even doubt the jury understands, I will ask them to restate it in language that a lay person will understand.

This is the reason why you see the better plaintiff’s lawyers using power points, overhead projectors, models of the parts of the body involved, etc. Everything is done to simplify the evidence and to make it comprehensible to a jury.

You will also want to pay more attention to what your witnesses wear. Emphasize the use of conservative clothing, the type of garb you believe jurors would expect of that professional witness. Lay witnesses should be reminded to show respect for the forum, and to dress appropriately.

4. I am sure many in the audience are familiar with the word, choreography. You probably identify it with dance numbers in a musical production. However, it also refers to the actors’ movements on a stage. Choreography, is equally important in a jury trial. For example, I cannot tell you how often I see counsel ask a critical question from the lectern, and before it is answered do something distracting such as shuffling their papers or moving back to their counsel table. Watch the jury during the examination of a witness. It is similar to a tennis or ping-pong match. Their heads move back and forth – from the examiner to the witness and back again.

Since the jurors are instructed to judge the witnesses’ credibility, not only on what they say, but also on their demeanor, it is obviously critical for counsel to facilitate this observation by at least standing still once the question is asked, or preferably, by closing the gap between counsel and the witness thereby forcing the jury to focus. While it may be dangerous for younger counsel to approach the witness too closely, and thereby draw a derogatory comment from the trial Judge, experienced jury trial lawyers tend to know how close they can get and just what they can get away with. It closes the jury’s field of vision and forces them to focus on the witness. Obviously this presupposes that the demeanor of the witness is something the examiner wants the jury to observe, which is often the case.

At the beginning of this talk, I mentioned that an excellent non-jury trial lawyer is often lost in a jury trial. I have seen this time and again. There is no substitute for experience, which is a lot harder to come by today than it was when I began to practice. In those days, we could use juries, believe it or not, in Small Claims Court in the month of June each year. As well, property damage cases were still being litigated as were modest personal injury claims, all of which provided experience with a jury.

Against the backdrop of trends in the insurance industry over the last ten years, particularly the tendency to shy away from more experienced (read expensive) counsel, and yet still file for Jury Notices, almost by knee-jerk reaction, it causes one to ask the question, “What is wrong with this picture?”

About three years ago the Toronto Star published a study on the changing ethnic population in the Greater Toronto Area. It pointed out that WASPs were no longer the majority and that new or second generation Chinese were the second largest group, followed by Italians who they replaced, as well as Portuguese and others. I decided to present a paper on this at my former firm’s seminar for the insurance industry in 1998. In preparation, we interviewed professors at the University of Toronto engaged in those ethnic studies, with a view to appreciating the type of civil justice system these people had become used to in their homeland. For example, in the case of Chinese immigrants, we learned that they could have emigrated from any one of four very different areas. One of those areas had no system of civil justice. In another, the concept of fault or causation was not a factor taken into account. Those who were disabled by injury, were deemed to be worthy of compensation regardless. In yet another area, corruption was rampant and people had no expectation that they would hear the truth in a courtroom. This last group would obviously be totally unpredictable in a jury trial in Toronto.
Following our interviews and research with the professors, in the other ethnic areas we concluded, that at least in the GTA, jurors could be totally unpredictable. Despite the fact that nobody loved trial by jury more than I did, I suggested to my audience that the insurance industry should no longer file Jury Notices by knee-jerk reaction, but should demand that their counsel justify the use of a jury in each and every case.

It seems to me that insurers, however, continue to file Jury Notices and retain inexperienced counsel. Why am I complaining? Because it prolongs the settlement date. If neither the adjuster, nor the lawyer, has the experience to appreciate how well or poorly their case could go at trial, settlement is not readily or cheaply achieved, and this is bad for both parties.

Our American friends, as usual, are very much ahead of us. Ten to fifteen years ago they began to use focus groups – sample groups of people to whom the case was exposed and reactions sought. This does not have to be an expensive proposition. It only requires a notice at the UIC office and an offer of $100.00 to $150.00 per day to obtain candidates to review more than one case.

Too often lawyers are satisfied to obtain the reaction of other lawyers in their office, or their friends, as a test run. In my view, that approach is at best useless and at worst misleading.

Oftentimes, it is not important what is said, but rather, how the plaintiff appears. As an example, the worst jury result I ever had was in a fibromyalgia case where the evidence was extremely favourable to the defence. However, the plaintiff was 35 years old. Two of her sisters whose statements I had seen, but not the people themselves as is usual, testified as lay witnesses. The sisters were 48 and 52 years of age, at least 13 years older than the plaintiff. What struck me and caused me to become concerned about my verdict, and I am sure the jury, is that the plaintiff looked 13 years older than her eldest sister. (As well, I am sure my jury all came from that region in China where causation was not an issue.)

By way of conclusion, my message is that jury trials are a totally different area of expertise and require the most experience. Just as one would not assume that a person who can drive a car can also operate an 18-wheeler, it is folly to assume that an inexperienced lawyer, in years or in number of trials, is just as likely to succeed at a jury as non-jury trial.

In looking at my watch I see that I am violating one of the axioms, I used in this paper; that the mind will absorb no more than the seat can endure.

Thank you for your attention.