In life, as in any jury trial, there are choices to be made by people (the jurors) and, as in a trial, there is a range within which choices are made.

Each of us can think of examples throughout our lives, where we have met someone and we have choices. Will this person be an acquaintance, a friend, or beyond? Will we want to help the person or not, and, if so, to what extent?

These decision are usually made on the basis of whether or not we like that person and how much. Human beings will do more; they will go the extra mile, for someone they like. On the other hand, they will do little, if anything, for someone they don’t like.

As stated before, in a trial, the jury has a range of choices. In a personal injury action, it could be as little or less than defence counsel suggests to the jury, or it could be an amount equal to or greater than the figures presented to the jury by plaintiff’s counsel, or the trial judge in certain cases.

Obviously, the plaintiff must be likeable and credible, but in the course of a typical two week trial, plaintiff’s counsel is in front of and speaking to the jury for close to 50 hours. The plaintiff is usually only front and centre for about 3 or 4 hours. Therefore I suggest, that no matter how likeable the plaintiff may be, if plaintiff’s counsel annoys the jury, or is nothing more than a neutral commodity, the plaintiff will not do as well than had the jury found the plaintiff’s counsel likeable.

Likeability is determined by many things. One of those issues that we can maintain complete control over is our appearance. One would not think it necessary to discuss this, but good grooming is fundamental. In dealing with males, being clean shaven, having all the buttons on your vest done up, including wearing a vest that fits, a clean shirt, and shoes that are shined, is an excellent start.

Aside from the way you look, the way you speak is also a critical factor. Do not be afraid to show emotion; look and sound committed to your client’s case; look and sound like you care. If not, the jurors will ask themselves, if the plaintiff’s lawyer doesn’t care why should we?

A smile and an occasional use of humor are just as valuable to success in the courtroom as it is in the real world. Obviously, restraint is necessary and you are not up there doing stand up comedy, but a smile, or a little humorous comment, from time to time can be very helpful.

One of the best, and perhaps only book on the subject, is my friend, Roger Oatley’s work, “Addressing the Jury”. Roger gives us many examples of openings and closings that he has used over the years, and explains in many cases why he has used that approach.

However, a word of caution is necessary. What works for Roger (or for that matter any other successful trial lawyer), may not work for you or me. Sometimes in listening to Roger, he seems to have such a nice way about his presentation, that I suspect most juries will do whatever he wishes and that something that may be found objectionable by a trial judge in his address, will not be found so objectable because of the way he says it. The same words from you or I may not achieve such a result, and may produce a mis-trial.

Watch and listen to other experienced jury trial lawyers, not to copy them, but to understand their approach and strategy.

OPENING STATEMENTS

This is not the time or place for argument, or a great deal of passion. It is about communicating with the jurors and presenting them with a roadmap for the trial. You are in effect explaining how each witness is going to fit in to the scheme of things and further your attempt to prove your client’s case.

The same as with a judge, the jury needs to understand what your case is about and what you are trying to establish and how you propose to do so. You must give them context, so that they will appreciate how each witness, or piece of evidence, fits into the puzzle or word picture you are presenting.

In your opening, you must let the jurors know about your client’s life, and try to find ways that they can identify with both you and your client.

Unfortunately, we lawyers are not a popular group. Year after year in public opinion polls, lawyers have a favourable rating amongst about 20% of the public. As another example, police and fire fighters are in the high 80 percentile or low 90.

This has always made me try as often as possible to use language that does not sound very much like a lawyer. In other words, the more I sound like a lawyer, the closer I get to that low 20%. Use simple language. Explain things in the same way as you would to a friend. Avoid lawyer-language, such as “notwithstanding” or expressions like “my learned friend”.

Keep in mind the jury is going to have to make a choice, and no case usually goes to trial if that choice is easy or obvious. I suggest the jury will gravitate towards the position of the lawyer with whom they identify. If it is a toss-up, and the jury perceives one of the lawyers as being “one of us”, he or she will get the nod.

Use your opening, as well, to let the jury know that neither your client nor anyone else, has a background without warts; things such as having filed improper tax returns; inaccuracies in discovery regarding prior health; investigation; it is far less damaging if you de-fang this evidence in your opening than if it comes out for the first time through defence cross-examination. Roger Oatley refers to this in his book as, “inoculating the jury”.

Avoid being dramatic in the opening about the horrors of the injuries that your client has suffered. If those injuries don’t speak for themselves, you may have selected the wrong case to try.

I believe in letting a jury know just what I am seeking in my opening statement. Obviously, general damages are not open for discussion, but I do discuss the various heads of damages, to let them know what they are trying to decide. I always try to make it a point of discussing the economic loss. I have concerns, for example, with Toronto juries, many of who earn under $40,000.00 a year, that when they hear figures like $1,000,000.00, they will find them to be ridiculous or out of sight. For that reason, I try to show them that if somebody starts to work at a $30,000.00 or $40,000.00 job somewhere up to the age of 30, their earnings over their lifetime are going to be in excess of $1,000,000.00.

You want to protect against any thought by the jury that the plaintiff is somehow overreaching.

Also, presuming you have cleared, through a preliminary motion with the trial judge, and obtained permission, I strongly suggest you introduce your demonstrative evidence and use it to your best advantage in both your opening and your closing. It has been said again and again, that people will remember far more of what they see and hear, than simply what they hear.

Some of the most simple demonstrative evidence, such as making positive prints of x-rays and showing the jury what somebody who has had an open reduction and internal fixation has in their body, is often enough to gain a great deal of empathy from the jury.

CLOSING STATEMENTS

Here emotion and argument, in my view, is essential. If a defence witness has been untruthful, make sure the jury understands that this person is unreliable.

Don’t be obtuse in your description of a witness. If they were untruthful, I think it is important that you ask the jury to draw their own conclusion about it.

As well, ensure that as a plaintiff’s lawyer you inform the jury that the trial judge, in his or her charge, will tell them that the defendant’s ability to pay should not be a consideration in reaching their dollar damage verdict.

In one of the first cases I tried as a plaintiff’s lawyer, it was a simple broken leg. There was some risk of it affecting the joint above and below the fracture site, and therefore there was a range to damages. I suggested a number in excess of $200,000.00. Defence counsel objected to my using such a high number and the trial judge, as he then was, in response to this objection, said to counsel, that when a cap was placed on general damages the potential for many injuries to approach the cap was virtually a certainty. It makes sense.

I suggest you should not feel bound by precedent when suggesting numbers to a jury for FLAs or general damages, or such things as housekeeping. Precedents are set by judges. However, jurors are a cross-section of the public whom we all serve and both judges and lawyers alike, should welcome their input as to whether what we are doing on damages is a reasonable figure given the attitude of the public.

As an example, in discussing general damages with a jury, and the maximum of slightly over $300,000.00, I usually include in my dialogue the fact that the worst of the professional athletes, for six month’s work, are guaranteed $300,000.00 in U.S. funds. Obviously, I am asking them to look at that and compare a lifetime of pain and suffering as against that figure.

As well, since the ability of the defendant to pay should have no influence on dollar damages awarded, it should also have no influence on the jury’s decision as to whether all proper evidence has been presented. It is dangerous sometimes to consider that a jury may think the defendant does not have enough assets to do proper investigation. It is a mistake to leave them with that notion.

In a trial that I did, the issue in question was whether the plaintiff intended to work to age 70. He worked in a business which employed 200 people that he was in contact with most everyday. I called a number of people to verify that my client had often said he wanted to work to at least age 70. I also pointed out to the jury that the defence had the opportunity to speak to these people, and the fact that they could produce nobody to contradict this evidence is something that the jury should keep in mind.

As well, in a closing, I think it important not only to reinforce what the trial judge will tell the jury, namely that they are judges of the fact, but to remind the jury that their verdict and findings of damages are indeed matters of fact and not law. They are clearly not only entitled to disagree with the trial judge, but duty bound to do so if they feel the facts support a verdict higher or lower than the trial judge’s figures, or counsel’s figures.

There are experts out there who have written articles about body language, human behavioural psychology, and the maintenance of eye contact. All of us are well served to stay in touch with those studies. For example, what does it mean if a jury is restless during your opening or closing, and will not make eye contact? In my view, it means they’re not connecting with you, especially if your opponent is not met with that type of response. What it reminds me of is that it is never too late to settle and you can still keep this case out of your loss column.

Obviously, in a paper of this length it is difficult to cover all the bases. I hope some of these suggestions will be found to be helpful.