Redress Risk Management (post until May 31/19)
Personal Injury

Anticipate, address PI lawyer stereotypes at jury trial

In order to reverse the recent trend of unfavourable jury verdicts for injured victims, personal injury lawyers need to think creatively to simplify trials and address the stereotypes jurors have towards accident victims, as well as against the industry in general, Toronto personal injury lawyer Sharon Bauer writes in Lawyers Weekly.

Bauer, a partner with Wolfe Lawyers, says juries have been giving injured victims unfavourable results, including shutting them out of any compensation, resulting in a significant number of personal injury lawyers preferring a judge-alone trial, while insurance lawyers strategically file a jury notice with nearly every claim. 

Why more resistance from juries now? One reason is that more chronic pain cases are going to trial, writes Bauer.

“Insurers are more reluctant than ever to pay damages for chronic pain thus forcing victims of chronic pain to go to trial. Some argue that more chronic pain claims have surfaced due to the increase in personal injury advertising. Of course at centre stage of a chronic pain trial is the plaintiff’s credibility. Lack of objective evidence in chronic pain naturally puts doubt into a juror’s mind about the victim’s injuries,” she explains.

At the same time, Bauer says studies have shown that jurors are biased against the plaintiff from the moment they enter the courtroom.

“In the past, most plaintiffs have been able to successfully overcome such bias. However, in adding insult to injury (pun intended), personal injury lawyers are now constantly battling the ‘ambulance chaser’ stereotype.”

Over the past few years, says Bauer, an abundance of personal injury advertising has solidified the stereotype the public holds of personal injury lawyers.

“Today, jurors may not sympathize with an injured victim when they feel that they cannot trust the very person that is representing that victim,” she writes.

Another issue, explains Bauer, is that trials have progressively become longer and more complex, as personal injury lawyers rely on just about every trick in the book — engineers, expert doctors in every practice, actuaries, treating doctors and lay witnesses — in an attempt to persuade biased jurors to compensate plaintiffs. Defence lawyers are also relying on long lists of expert witnesses to rebut the plaintiff’s evidence.

“Lawyers are doing their clients a disservice by asking jurors to contemplate complex legal and medical concepts for weeks at a time, she writes.

One solution to the problems faced by personal injury lawyers and their clients is a movement toward the abolishment of a jury, says Bauer.

“Without a jury, injured plaintiffs and their lawyers do away with biases and stereotypes that prevent an injured party from being compensated fairly.”

However, she adds, “the abolishment of a jury system does not seem like a likely reality in the near future.” 

In the meantime, Bauer writes, plaintiffs’ lawyers need to move away from the conventional trial and think outside the box.

“In the past few years, the judiciary has been promoting the principles of proportionality and encouraging lawyers to shorten trials. This was highlighted in Chief Justice Coulter Osborne’s Civil Justice Report Project, reiterated in Hryniak v. Mauldin 2014 SCC 7, and implemented in Rule 76 through summary trials. Lawyers should consider using a hybrid of affidavit and viva voce evidence. Justice Mark Edwards in Davies v. The Corporation of the Municipality of Clarington 2016 ONSC 6636 encouraged personal injury lawyers to shorten their trials by relying on medical expert reports as opposed to calling an expert to give viva voce evidence.”

In terms of personal injury advertising, although the Law Society of Upper Canada has put together a working committee to address the issue, Bauer says advertising is here to stay, which means “the ambulance chaser stereotype" is also here to stay.

“Personal injury lawyers need to anticipate this stereotype at a jury trial and take the bull by its horns. They need to address it at trial and talk to the jurors about this misconception at the beginning of a trial when jurors begin to develop opinions.”

To Read More Sharon Bauer Posts Click Here
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