Factors from juries that can negativity affect your court case are racial bias, speedy / early deliberations, outside research, ICBC Insurance premiums, hired experts and jury member interaction
In a jury trial (Sharamandari v. Ahmadi) the Court received, in open Court, some rare insight from several jury members about deliberations and jury interaction. The law in Canada is that jury deliberations are to remain confidential but, in this case, there were some allegations of jury misconduct and several jury members were asked by the trial judge to explain what was happening in the jury room during breaks.
There are probably only a handful of cases in Canada where the details about jury room deliberations has become available to the public in open court.
The disclosure is shocking but, in a way, predictable.
The rumour has it that juries can have racial bias. We often feel that at times the jury is trying to rush through of the deliberations as quickly as possible. We worry that jury members are sitting on the computer at home “Googling” information to be used in deliberations. We wonder what they feel about ICBC. We question whether juries respect experts who are “hired guns”. We question whether the jury is following the rules.
For at least one jury, the above concerns were front and centre.
In Canada, one would expect that racial biases would not be a major discussion in a jury room. This is particularly so in Vancouver where more than 50% of the households speak another language at home other than English.
In Sharamandari, supra, one jury described in open Court:
There has been, you know, inappropriate remarks, value judgment… Well, racial bias. For example, about the plaintiff regarding…the entire Iranian people, Persian… It’s coming from two or three people. There’s been mockery of the way the Iranian people are dancing. One juror was motioning, making with his body you know, motioning with his body mocking the Iranian people when they dance. There has been so that’s the racial prejudice.
Later, the same jury member commented:
…I heard that, oh, there is an Iranian doctor and Iranian friends, family. Well, I guess they’re all getting together. You know, they’re all getting together on this case…
For a Plaintiff who has an ethnic background, the above is obviously very troubling.
Speedy/ Early Deliberations
On occasion you see a jury return quickly with a verdict even though the case seemed somewhat complicated. One wonders how this possibly can occur.
Also, we all worry that the jury is deliberating before the cases has even been concluded.
If Sharamandari, supra, the jury room events are rather telling. The jury foreperson took the opportunity before the Plaintiff’s case was completed to hand out sheets of paper with eight issues on them asking each jury member to summarize the evidence on the issue so that there could be early deliberations. As pointed out by one jury member:
The whole idea was that this was going to be used to hurry the deliberation. Now, I asked about what about the other side? What about the defendant? Are you going to do the same thing with the defendant’s exhibits? And she said yes. So, each jury is going to have well, we’re all going to have 16 pieces of paper on eight topics that was picked by the (foreperson)…The jury foreperson said that we don’t want to stick around for the deliberations. We don’t want to waste time. We want to get out of here by the weekend. This is just to hurry the process….
This event clearly solidifies that the Plaintiff needs to establish a good early impression because the jury members may make up their mind quickly.
In, Sharamandari, supra it was disclosed that one jury member took the opportunity to spend some computer time one evening researching a point of law. The jury member then brought his research to the jury room to share with his fellow jury members.
On first blush, this may not be overly concerning if we assume the jury is simply trying to understand a legal principle. However, in this situation, the jury member was able to uncover the United States law on the issue which is quite different than that of Canada.
ICBC Insurance Premiums
In law, the amount of ICBC insurance premiums paid by the motorist is completely irrelevant to the qualifications of damages in an ICBC claim. If you feel that jury members do not factor in the impact of the claim on their own insurance, guess again.
In Norsworthy v. Greene 2009 BCSC 617, Mr. Justice Macaulay stated:
This already creates the risk that prospective jurors may believe that the higher the award in a given case, the greater the likelihood that their own insurance premiums will rise. Such thinking is, of course, completely improper and would, if disclosed, demonstrate bias on the part of the juror contrary to his or her own. This is the elephant in the corner that cannot be ignored.
In Sharamandari, supra, one juror commented:
The jury said this… well, if the plaintiff is asking for all of these medical expenses to be paid by ICBC, our insurance rates will go up, so we can’t let that happen…
The moral of the story is that you have to overcome the self-centred jury member who is worried about the impact of the claim on his/her own pocketbook. This is particularly troublesome at this juncture in time because ICBC is currently showing significant financial loses and the ICBC insurance premiums are increasing rapidly. It is no wonder that ICBC is currently filing jury notices in almost every case attempting to take advantage of the sympathy they may receive from members of the jury.
Using hired experts often results in reports supportive of the claim. The question becomes whether or not the jury ignores the reports simply because the expert is hired and not a treating doctor.
The jury in Sharamandari, supra was not overly excited about experts hired to provide an opinion:
In front of people, I heard that the plaintiff’s expert witnesses are all, they’re all paid consultants. They’re not, you know, they’re not really genuine. They’re all paid consultants. I heard that kind of remark. I found that troubling…
The above conclusion from the jury came without the usual questions about how much the expert makes from Plaintiff work.
Jury Member Interaction
We all know if you throw individuals into a small room there is going to be personality conflicts at times. In Sharamandari, supra there was a complete meltdown between one of the jury members and the foreperson to the point of causing the mistrial. The disagreement can be fairly summarized as being created by the fact that the foreperson was trying to cut corners and “cheat” the rules whereas another jury member wanted to strictly adhere to the rules of court.
The Moral of the Story
The fair conclusion from a rare look into the jury room is that many of the biases and irrelevant factors we worry about actually do come into play with the jury. The best approach to a jury trial is to assume these biases and irrelevant factors are in the minds of the juries and then try to frame the case to overcome these obstacles or turn the obstacles in the favour of the Plaintiff.
For a jury that wants to deliberate early and decide early, set a good first impression. Maintain a theme in the early stages of the case that will help set the mind of the jury in favour of the Plaintiff. For the jury member that is going to be “Googling” after Court hours, ensure that the Plaintiff does not have a negative web presence. For the experts, focus on the favourable reports from the treating physicians and focus on the fact the defence has hired experts. For the jury member that is set on following the rules, ensure that the rules are very much known to the jury.
In summary, although a jury trial is always a crapshoot, understanding why juries may award a low judgement will help overcome inevitable biases and lead to a fairer result for the Plaintiff.