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Personal Injury

Why jurors have no place in civil trials: Yermus

Juries should be abolished for civil trials because ordinary citizens are ill-equipped to deal with the often-complex issues involved, says Toronto personal injury lawyer Michael Yermus.

“It’s an unfair request to make of the average person and it unnecessarily prolongs trials, which then burdens the court system,” says Yermus, principal of Yermus & Associates.

Judge-alone civil trials work much better because they control the process and, unlike most jurors, understand the law, he tells AdvocateDaily.com.

Lip service is often paid to civil juries as part of the democratic process in which six ordinary citizens do their civic duty and apply their common sense to legal disputes, says Yermus.

“But why should a case be subjected to common sense when we’re calling experts?” he asks. “Why is it fair to ask somebody to take two weeks, likely unpaid, away from their job and try to play lawyer, doctor and engineer?”

He says juries are necessary for criminal trials when somebody’s freedom is at stake.

“But if it’s a complicated financial dispute, you’ve got to ask somebody to be a financier or a banker and settle the dispute. How is anybody without that background well-suited to do that?” he wonders.

“It’s a responsibility that nobody asks for and nobody wants. It unduly burdens the population of the province — both employees and employers,” adds Yermus.

In Ontario, about 23 per cent of civil trials are heard by juries, the vast majority involving motor vehicle accident cases, states the 2007 Civil Justice Reform Project report.

Yermus says plaintiffs aren’t on an even playing field with defendants in jury trials, particularly in personal injury cases, where the law seems to conspire against them.

For instance, Yermus adds, facts are hidden from jurors. They cannot be told if an insurance company is behind the defendant. Nor are they told that any pain and suffering damages they may award the plaintiff will be reduced by a $37,500 deductible, he says.

Ontario Superior Court Justice Frederick Myers commented in this case that civil jury trials in Ontario seem to exist “solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers.”

Yermus says the judge pinpointed exactly why juries exist in personal injury trials.

“The question is: Why does the government go along with it?”

Civil jury trials are relatively rare outside of the United States, according to Cornell Law Faculty Professor Valerie Hans.

The type of multimillion-dollar civil jury awards that attract sensational headlines south of the border are unusual in Ontario, Yermus points out.

“Ontario, or more specifically Toronto, is not a very forgiving jurisdiction for plaintiffs.”

He says there seems to be a perception in Ontario that there’s something untoward about people who advance claims for money.

Most jurors are reluctant conscripts and likely blame plaintiffs and their lawyers for making them take 12 days or so out of their lives, he says.

“At some point, these people check out on you. They resent you. They don’t want to be there.”

The only time jurors seem to favour plaintiffs is when they are very sympathetic or terribly injured, he says.  

“I often tell my clients: ‘None of this is fair. The field is very much slanted in the other party’s favour, but if you step on the field those are the rules,’” Yermus says.

Once plaintiffs go before a jury they risk losing their last bit of control over their own proceeding, he says.

“If you go to trial, you have left an important decision in the hands of six strangers. I have enough trouble figuring out why people I know think a certain way. I couldn’t begin to imagine why six people I know nothing about would decide one way or the other on your case.”

The law prevents lawyers from asking jurors about their deliberations, so their reasoning remains shrouded in mystery.

“They might deliver a well-reasoned decision, or they might take one look at the plaintiff and say, 'You look like a jerk and I’m not going to give you any money,'” says Yermus.

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