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Why we should reduce the number of civil trials decided by juries


Civil jury trials raise surprising access to justice concerns. Jury trials are less predictable, more expensive and create real risk that the law will play second fiddle to the jury’s collective version of “justice.”

Many lawyers extoll the jury as a sacrosanct tool that ensures common sense and community values are represented and applied in our legal system. The problem is that many people’s values and common sense are, knowingly or not, touched by racism, sexism, unfair beliefs and other irrational forces.

In many ways, a civil jury trial is more similar to a mini political campaign than a rigorous exercise of applying the law to the facts of a particular case.

Juries are generally more easily persuaded by appeals to emotion, lawyer tricks, and bias than are judges.  And lawyers know it. We drastically change the way we try cases in front of juries. And judges know it. I’ve had judges plainly point out during pre-trial conferences that it is more important to have a jury like and relate to your client than it is to have the law and evidence on your side.

Unlikeable people and marginalized people are entitled to compensation just as much as anyone else. Immigrants of color are entitled to compensation just the same as white “old stock” Canadians. Trans people are entitled to compensation just the same as cis men. But there are little to no protections put in place to ensure a jury agrees.

Juries are unpredictable. You never know who will be called for jury duty. During jury selection, you know nothing about the jury members other than their occupation and names. You have little control over who is eventually picked for the jury.

If you were a female immigrant of color, would you want an all-white male jury deciding your case? I wouldn’t. But an insurance company might. Insurance companies know that juries can punish people they do not relate to or do not like.

Are judges better able to put aside bias and make the right decision? Yes and no. Judges are people too – predominantly white, upper class men. And they make mistakes. But judges must provide written reasons that support and explain their decisions. Those written reasons can then be scrutinized for errors and appealed to higher courts. There are no written reasons in jury trials – just verdicts.

Juries are less equipped than judges to decide most civil cases. Pieces of information are kept secret from juries: they are not allowed to know that a large insurance company with deep pockets represents the defendant and pays for the judgment. Juries do not have access to past court decisions to see how the system has dealt with similar cases in the past. In car accident cases, the jury is not told that injured people generally have the first $36,000 of their pain and suffering damages deducted from their award. This means that juries can return a verdict for $30,000 and an injured person receives nothing, loses the case and owes the insurance company a portion of its legal bill.

Juries often hear complicated medical, engineering and accounting evidence from conflicting experts retained by both sides. Would you want six people with no medical or vocational training deciding the nature of your injuries or what treatment and income you need for the rest of your life?

Jury trials are longer than judge alone trials because of the extra time needed to pick the jury, explain the law to the jury and have the judge rule on what evidence the jury will and will not hear. This means that jury trials are the more expensive option in an already prohibitively expensive justice system.

Insurance companies and large corporations are better-equipped to take on the risks of jury trials. An insurance company losing a trial usually means losing an infinitely small percentage of the year’s profits. An injured person losing a trial can mean a life of poverty and medical bills. The result is that insurance companies are generally more willing than an average citizen to force a case to be tried by an unpredictable jury. In fact, insurance companies use the threat of a jury trial to push injured people to settle their claims for less money.

For lawyers, trying cases with juries is often the most rewarding and exciting work of our careers. The quality of counsel work is generally more important than in judge alone trials, meaning we have more control over the outcome of a case. Perhaps this is part of the reason that so many lawyers defend the right to a jury trial with such vigor?

Numerous countries and jurisdictions have reduced or removed the right to a civil jury trial. South Africa does not allow jury trials due to fears of racism tainting decisions. England and parts of Australia do not allow jury trials for personal injury claims. In Canada, you cannot select a jury for civil cases against the Crown.

At its most basic parts, our justice system is supposed to provide an inexpensive avenue for all Canadians to resolve their disputes in a fair, impartial way in accordance with the rule of law. Civil jury trials as they currently exist too often push against these core values of our legal system and make it more difficult for average and marginalized Canadians to access justice it’s time for a change.

Joseph Fearon is a personal injury lawyer with Preszler Law Firm LLP. Reasonable Doubt appears on www.nowtoronto.com on Mondays. Follow @JWCFearon on Twitter.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Preszler Law Firm LLP or the lawyers of Preszler Law Firm LLP.

website@nowtoronto.com | @nowtoronto

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