ELEMENTS IN A CIVIL JURY TRIAL

Transcription

1 ELEMENTS IN A CIVIL JURY TRIAL A civil jury trial involves the interaction of the judge, jury and counsel. The first step, in preparation, is the holding of a pre-trial conference between the judge and the trial counsel. Among a number of matters to be discussed are: (1) The issues: From the perspective of each counsel, and particularly highlighting any changes from the issues outlined in the filed pre-trial memorandum. (2) The Facilities Required: Background information relevant to the trial, including any need for visual or audio aids, and the scheduling of witnesses, particularly experts. (3) Pre-Trial Procedures: Any pre-trial motions relating to striking the jury, in part or totally, admissibility of evidence, or any lack of production. (4) Jury Questions: At the first opportunity counsel are requested to consider and draft proposed questions for the jury. (5) Advising the Jury on Damages: Included in the early discussions with counsel is whether the jury should be given guidance on a range, limit or ceiling for damages.

2 - 2 - (A) Striking the Jury Motions to strike are often heard well in advance of the beginning of the trial. It is well recognized that participants in a civil trial have a prima facie right to select a trial by jury and that the burden is on the party seeking to strike the jury to show "sufficient" and "cogent" reasons for depriving the other party of the right to a trial by jury. See the comments by MacDonald, J. of the N.S.S.C. Appeal Division in MacNeil v. Hill the Mover (Canada) Ltd. And Cannon (1961) 27 D.L.R. (2d) 734 and particularly at p In A.D. Smith Lumber Ltd. V. General Home Systems Ltd. (1986) 72 N.S.R. (2d) 333, Justice Grant restated the unique entitlement for litigants in this province to select a trial by jury. In King v. Colonial Homes Ltd., [1956] S.C.R. 528 at p. 533, Justice Cartwright wrote: This Court has more than once affirmed that the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons.

3 - 3 - The right is, however, not absolute. Justice Hallett in Leadbetter & Leadbetter v. Brand (1979), 37 N.S.R. (2d) (660), struck a Notice of Trial with Jury on the basis that the issues to be determined involved a consideration of difficult and complex scientific evidence that could not be adequately understood and considered by a jury. Justice Hallett referred to the decision in Marshall v. Curry (1933) 6 M.P.R. 267, observing that it was recognized in the Province of Nova Scotia that where the determination of an issue involved the consideration of expert medical testimony, a judge may exercise their discretion to set aside the jury notice. In A.D. Smith Lumber Limited v. General Homes Systems Ltd., supra, Justice Grant noted that at issue in the case was the interpretation of documentation and the intention of the parties as expressed in the documents and this was primarily a question of law and not of fact. As a result, he set aside the jury notice on the basis the resolution of the issues between the parties depended on the interpretation of various documents which involved questions of law that should not be left to a jury. Justice Grant went on to observe, however, that "the issue of credibility is generally considered to be a proper one for the jury."

4 - 4 - (8) PICKING THE JURY Section 11 of the Juries Act, R.S., c. 242, provides the procedure for the selection of the jury and Section 13 stipulates that in a civil matter a jury consists of seven persons, of whom five, after deliberating for at least four hours, may return a verdict. Section 13 also provides that subject to the Civil Procedure Rules, the plaintiff or plaintiffs, as one side and the defendant or defendants as another side, are each entitled to three preemptory challenges; however, C.P.R (1) provides four challenges for each side. Jurors may be excused on the same basis as in a criminal trial; bias or perception of bias; relationship, familiarity or otherwise to any party; prior knowledge of the facts in the case; or, inability to decide the issues fairly and impartially based on the evidence presented during the trial.

5 - 5 - (C) THE JURY QUESTIONS One of the first matters to be discussed at the pre-trial conference with counsel are the "jury questions." Although often not finalized until the conclusion of the evidence, the jury questions are the basis for the jury to render its verdict, and therefore require considerable thought and careful drafting. Although the responsibility is that of the judge, I am not aware of any judge who would use jury questions that have not been first reviewed and discussed with counsel. It is my practice to raise at the earliest possible occasion the matter of the jury questions and to invite counsel to each draft and exchange with each other, and the court, their suggested questions. The process does not end there. The dynamics of the trial are always changing and so too, the necessity to rewrite and revise the proposed jury questions. Wording that may have seemed appropriate prior to the presentation of evidence may no longer apply once the evidence is heard. Although counsel will have had the benefit of the pretrial procedures such as discovery, interrogatories,

6 - 6- production of documents and exchange of expert's reports, invariably, in almost every case, the actual evidence will vary to some degree, at least, from what counsel have anticipated. This may arise as the result of cross-examination of a witness on the stand or a witness putting a different slant on their evidence than they previously gave at discovery or in a statement. As such, the drafting of the questions can only be finalized once all the evidence has been presented. Although admittedly in a criminal jury trial, I had an occasion when half way through the trial defence counsel decided to change the basis of his defence. Whereas the original indication was a defence of identification, the defence apparently decided, after I allowed certain photographs to be used in identifying the accused to be admitted, to present the defence of consent on an assault charge. Things and positions can change, and often do, during the course of a trial, whether it be a criminal or a civil trial. In a civil motor vehicle case, it would not be extraordinary to see counsel adjust its defence if the evidence developed in a manner other than as pre-planned, and, of course, providing the pleadings were broad enough to encompass the new position. Also, in libel and slander, the technical nature of these issues, including the nature and type of damages, may often result in the need to review and possibly rephrase the wording of the questions to be given to the jury.

7 - 7 - One issue, relating to jury is whether the jury should be asked to explain their decision, in other words, in a negligence case should the jury in finding negligence be required to state the basis of their finding. The argument against focuses on possible confusion where different jurors, in reaching the same verdict, base their decisions on different factual findings. Thus, for example, if after four hours of deliberation a jury were to reach a split verdict, with five finding negligence and two not finding negligence, but in providing particulars of the negligence the five are divided on the basis of their finding, the argument is that this could create a difficulty, particularly in the event of an appeal. However, when we consider how we charge a jury in a criminal case, namely, that they must be unanimous in their verdict but may each arrive at their verdict by "different evidential routes" there is, it seems to me, no difference in a civil case with the jurors, or the required majority, reaching the same verdict, but by different evidential or factual routes. Surely in a civil case, this is information that should be available to a Court of Appeal, and I am not aware that minority factual findings resulting in a majority for one verdict is any basis for a reversal. If the court of appeal is satisfied there was evidence supporting each factual finding, the adoption

8 - 8 - of different evidential routes for one verdict would not, it appears to me, be a basis for reversal. In this vein, I would refer to the decision of the Nova Scotia Court of Appeal in Stubbert v. Smith, (1992), 117 N.S.R. (2d) 118, where, at the trial, specific questions were asked of the jury inviting them to state the facts upon which they found negligence to exist. The Court of Appeal said nothing about the adoption of this format nor did they quarrel with this approach. I will conclude this portion of my remarks by referring to the Supreme Court of Canada decision in Dube v. Labar, (1986) 1 SCR 649. A passenger in a motor vehicle was injured when it rolled over. Both the driver and passenger had been drinking the night before and on the day of the accident. The defendant driver, who had been a passenger, took over driving after the plaintiff was unable to restart the vehicle, when he stopped to pick up two hitchhikers. The defendant insisted that he was capable of driving. The accident happened when the car veered as the driver turned to speak to one of the hitchhikers in the back seat. The plaintiff attempted to grab the wheel and straighten out the car's course but this only resulted in the car overturning.

9 - 9- At trial, the defences of volenti non fit injuria and contributory negligence were put to the jury. The majority of the Supreme Court, represented in the reasons of Justice Estey, found the charge to the jury, in respect to the two defences, "misleading and confusing as to the implications of a finding that the plaintiff had absolved the defendant. " At p. 655, Justice Estey quotes from the trial judge's charge: Now, if you find there was no negligence on the part of the defendant in the first place, then you need not bother considering contributory negligence. However, if you find that there was negligence on the part of the defendant, then you ~ consider whether the defendant has proved contributory negligence, of either of the two forms which I have mentioned, on the part of the plaintiff. (Emphasis added) Justice Estey, at p , continues: In contrast, no mention was made of the relationship between the two routes, or defences, open to the jury.

10 - 10- The jury was then requested to answer a number of questions. These questions, and the answers given, are as follows: 1. Was there negligence on the part of the Defendant Robert Labar which caused or contributed to the damage suffered by the Plaintiff in the accident? Answer: Yes. 2. If your answer to question No.1 is "yes", of what did such negligence consist? Answer: a) Labar was operating a vehicle while impaired. b) Labar failed to maintain proper control of his vehicle. c) Labar filed to operate his vehicle with proper care when he turned to converse with his passengers. 3. Did the Plaintiff Gregory Dube expressly or impliedly absolve the Defendant Robert Labar from liability for negligence? Answer: Yes. 4. If your answer to question No. 3 is "yes" of what did such absolution consist? Answer: By willingly assuming the role of passenger in the Labar vehicle with Labar as the operator while knowing his state of impairment. 5. Was there negligence on the part of the Plaintiff Gregory Dube which caused or contributed to the damage suffered by him? Answer: Yes.

11 If your answer to question No. 5 is "yes" of what did such negligence consist? Answer: Dube's touching, grabbing or attempting to touch or grab the steering wheel was a contributing factor. 7. If your answer to question No.1 is "yes" and your answer to question no. 5 is "yes", state in percentages the degree of fault or negligence attributable to each: Defendant Robert Labar: 75% Plaintiff Gregory Dube ~ TOTAL 100% 8. Disregarding the apportionment of negligence you have made in response to question No.7 above, at what amount, if any, do you assess the damages sustained by the Plaintiff Gregory Dube under the following heads of damage? (a) For pain, suffering and loss of enjoyment of life from the date of the accident to date and in the future? $ 5,000 (b) For loss of income from the date of the accident until today? $ 15,000 (c) For los~ of prospective earnings from this date forward? 0 TOTAL $ These damages were reduced to $15,000 to account for the plaintiffs contributory negligence. However, because the jury had answered the third question affirmatively, the plaintiffs action was dismissed. An appeal to the Yukon Court of Appeal was also dismissed. Taggart, J.A., writing for the Court of Appeal, stated in part: It seems to me, given the very clear and accurate charge of the judge, the answer given by the jury to question 3 must be taken to mean that the plaintiff had impliedly absolved the

12 defendant from liability for negligence and had done so having regard for their answer to question 4, by willingly assuming the role of passenger in the vehicle driven by the defendant at a time when he knew of the defendant's incapacity to drive. I think it was open to the jury on the evidence to reach the conclusion they did on the issue of volens. Being of that view I think that we ought not to interfere. The confusion created by the charge was not helped by the questions. Justice Estey, again quoting from the charge, at p. 661, said:... if you find that there was negligence on the part of the defendant, then you.m..!j.sl consider whether the defendant has proved contributory negligence... (Emphasis added). The confusion related to the directions to the jury to consider contributory negligence, if they found negligence on the part of the defendant, notwithstanding also having already decided the plaintiff had absolved the defendant of any liability for his negligence. Justice Estey stated the charge on the law of volens was consistent with the authorities, but did not go far enough. The judge should have explained to the jury

13 that a finding must first be made on the facts required to support the application of the volenti principle, and if the factual requirements were present, that would be the end of the matter and the remaining questions relating to contributory negligence "need not...be answered except as a matter of completeness lest for some reason the finding of a volens might be set aside in circumstances not requiring a new trial. Justice Estey, at p. 660, continued: All this should been explained to the jury. The jury should have been instructed to direct their minds to the contributory negligence issue only after they had considered and rejected the volens defence. Without such a direction the charge failed to make clear the consequences of a finding of volenti. Nevertheless, the appeal was dismissed because in the answers given, and in particular the answers to questions 3 & 4, the jury made it clear they found the plaintiff had, by his conduct, absolved the defendant from liability for negligence. Notwithstanding, the confusion created by the trial judge's charge, and continued by the questions, this was overcome by the Jury's answer. Justice Estey, at p. 662:

14 Any confusion which might in this case have resulted from the charge, however, must be considered to have been overcome by the answers given by the jury to the questions put to them. There are no ambiguities suggesting actual confusion in the language used by the jury in their answers. The series of questions is not itself without some ambiguity, as without a qualification such as is found in the first phrase of question eight, they may be read as defining one problem with one solution rather than one problem with two, inconsistent, solutions. However, it is not unreasonable to conclude that the jurors may indeed have approached contributory negligence as an alternative solution to that afforded by their answer on the issue of volenti. Since no claim was made by the defendant against the plaintiff, the jury was not concerned in answering any question with a finding of the plaintiffs liability. It must be borne in mind that the jurors had present before them a clearly worded question on volenti which expressly asked whether the plaintiff had, by any conduct on his part, absolved the defendant from liability for negligence. It would be improper, however confusing the judge's charge might have been, for this Court to assume that the jury misunderstood the meaning of question number three in face of such clear wording. Questions five through eight were surplus, given the answer to questions three and four, and it is reasonable to conclude that the jury so understood them. This case best illustrates the need to draft clear and unambiguous questions. Although the questions presented to this jury did not remove the confusion in the charge, properly worded questions would not have required the various appeal courts to analyze the juries response to determine if they appeared to understand the volenti defence and its effect on the outcome of the trial.

15 Ambiguously worded questions may have a second impact on the validity of the trial itself. If the wording of the questions is ambiguous, it may prompt a question from the jury. The response to such a question will have to be drafted with great care since it cannot be seen as prompting the jury in one direction or another. It is highly preferable that the questions be clear from the start and guide the jury through the various steps from liability to damages. The use of questions requiring answers that outline the factual findings on which the verdict is based also serves as a form of "decision tree". This enables the jury to consider the sequence of findings from the initial determination of liability to the assessment of damages. In Dube v. Labar, supra, question (5) could have begun by saying if the answer to question (3) was "yes" then to go on to answer question (8), the question about damages. Again, this would only be answered, after it was explained to the jury that they should make a finding as to damages regardless of their findings in respect to liability.

16 - 16- (D) Should the Jury be given a range or limits or ceiling for general damages? This involves two separate types of general damages claims, one being the "catastrophic" claim and the second being cases in which the upper limited for general damages established by the Supreme Court of Canada trilogy of cases would not be appropriate. The Ontario Court of Appeal in two decisions, Gray v. Alanco Developments Ltd. (1967), 61 D.L.R. (2d) 652, and Howes v. Crosby (1984),6 D.L.R. (4th) 698 stated it was improper for either the trial judge or counsel to express views as to the quantum of damages which might be awarded by a jury. The Ontario Legislature subsequently intervened to change the law, enacting s. 118, as an amendment to the Courts of Justice Act, R.S.O. 1990, c. 43. In an action for damages for personal injury, the court may give guidance to the jury on the amount of damages and the parties may make submissions to the jury on the amount of damages. Nova Scotia. No such provision exists in Statute law, or in the CPR rules, applicable in

17 (A) Catastrophic Claims: Craig, J.A., of the British Columbia, of the Court of Appeal in Halliday et al v. Sanrud (1979),15 B.C.L.R. 4, at p. 9 said: I think too that in asking the jury to answer Q. 1 (relating to the amount of non-pecuniary loss past and future) the trial judge should advise the jury that in 1978 the Supreme Court of Canada stated that "save in exceptional circumstances" the maximum award for nonpecuniary loss for a young adult quadriplegic should be $100,000 and advise the jury, generally, of the nature and effect of the injuries which Andrews suffered. In Neuzen v. Korn [1995], 3 S.C.R. 674, the Supreme Court of Canada considered an appeal from a medical malpractice trial before a civil jury. Among the issues considered by the Court was whether the trial judge erred in failing to charge the jury on a rough upper limit on non-pecuniary damages. The majority concluded that it was reasonable for the trial 'judge not to have instructed the jury on the rough upper limit for non-pecuniary damages when neither counsel had asked for such a charge. However, the award had to be corrected to conform with the jurisprudence where the damages exceeded the limit. Justice Sopinka, in the reasons adopted by the majority, at p. 726, said:

18 Accordingly, in my view, the trial judge should instruct the jury as to an upper limit, if, after considering the submissions of counsel, he or she is of the opinion that the damages by reason of the type of injury sustained might very well be assessed in the range of or exceeding the upper limit. The instructions may include an explanation of the reason for the cap. On the other hand, if the trial judge is of the view that the injuries involved will not likely produce an award approaching the rough upper limit, it is best that the trial judge not charge the jury on the matter. The upper limit, like any other matter of law, need not be placed before the jury where the issue does not reasonably arise on the facts of the case. The approach of instructing on the "rough upper limit" appears to be both reasonable and useful in providing a jury with some guidance in catastrophic claims for non-pecuniary loss. (8) Non-Catastrophic Claims In respect to non-catastrophic claims, one of the concerns about mentioning the upper limited set by the trilogy is that the jury may then award on a proportionate basis, using the upper limit as a bench mark.

19 - 19- The Saskatchewan Court of Appeal in Rieger v. Burgess (1988), 66 Sask. R. 1, declined to follow the Ontario approach in Howes v. Crosby. At p. 47, he court said: In light of this clear statement we conclude that it is proper for a trial judge to bring meaningful guidance to the jury's deliberations by giving guidelines on the reasonable range of awards for pecuniary and nonpecuniary losses. The assessment of damages will of course, depend to a great extent on the view that the jury takes of the evidence. The judge in reviewing the salient points of evidence with the jury will stress the important findings of fact they have to make. No doubt the possible findings of fact will be related to the range of awards that he discusses with them. However, counsel are not at liberty to engage in this type of discussion with the jury. The trial judge carries this important role but with the benefit of counsel's submissions to him in the absence of the jury. In most cases counsel will canvass this aspect of the case in pretrial briefs with further submissions in the absence of the jury after the evidence is in. Since, as a matter of law the Supreme Court of Canada has placed a judicial cap on nonpecuniary losses, the jury should be so instructed. This instruction should be coupled with guidelines on the reasonable range, having regard to the evidence in the case before the court. In arriving at this conclusion we have considered the present anomalous situation where a judge sitting alone receives full submissions from counsel on the range of appropriate awards. He is also entitled to do his own additional research if he feels that the authorities have not been fully canvassed. Should a jury untrained in the law not be entitled to similar assistance from the judge, subject of course, to their findings of fact which will be so important in determining the quantum in many cases? In our opinion such assistance would not ''water down" the jury's fact finding role. On the contrary it would assist them in arriving at a fair and reasonable assessment of the damages based on their findings of fact. In our opinion a jury after making its assessment of the evidence will conscientiously apply guidelines on what is an appropriate dollar

20 - 20- award of damages. We observe that we have no difficulty in entrusting major decisions in criminal matters to the jury and in such circumstances trial judges carefully outline the issues of law and evidentiary guidelines that are to be applied with certain types of evidence. Justice David Griffiths of the Ontario C.A., recommends the practice outlined by the Saskatchewan C.A. in Ede v. Junek and Hart (1990) 87 Sask R. 126, where at p. 133, Justice Vancise said: There is no case authority which sets out with any degree of detail or precision the procedure a trial judge in a noncatastrophe case ought to use when giving instructions and guidance to a jury on the appropriate range of damages. In my respectful view, the proper approach is as follows: (1) The judge should receive submissions from counsel as to the appropriate range of damages, in the absence of the jury. Those submissions can be in the form of written briefs submitted prior to trial or during the trial which will then form the basis for argument, having regard to the evidence proved at trial, which will be made to the judge in the absence of the jury before the judge instructs the jury. Counsel are not permitted to make submissions regarding damages directly to the jury, as that is the function of the trial judge, and the submissions will assist the trial judge in formulating an appropriate range of damages. (2) If counsel agree on the appropriate range of damages, and the trial judge is of the view that it will be helpful, he shall instruct the jury on the agreed range of damages.

21 (3) If counsel do not agree, and the trial judge is of the view that it would be helpful, he shall instruct the jury as to the range of damages he considers appropriate having regard to the evidence and the submissions of counsel. (4) In instructing the jury as to damages, the trial judge should state in clear and unequivocal terms that it is the jury's function to determine damages and that his function is to assist them in their task. He should make it clear that the range which is being put to them is for their guidance and assistance and it is not a hardand-fast upper and lower limit but a range which the trial judge considers wide enough in the circumstances, having regard to the evidence, to encompass the damages suffered by the plaintiff, and that they and they alone will determine the appropriate amount. It is the jury's function, not the trial judge's function, to decide the proper measure of damages. In my opinion, by approaching the matter in this way, the function of the jury will be preserved, but their task will be rendered easier. The problem of excessive awards for nonpecuniary loss such as occurred in Rieger where the trial judge did not, as a result of the binding and controlling case law then in existence, instruct the jury as to damages, will be avoided. I am not aware whether the Court of Appeal in Nova Scotia has commented on the suggested approach put forward by Justice Vancise and the Saskatchewan Court of Appeal. It seems to me that the practice of not providing any guidance, in terms of quantum, leaves the jury to its own devices. In a judge alone trial, counsel often provide authorities and submissions as to their opinion on the appropriate quantum of damages. Although with the limitations and cautions suggested by

22 - 22- Justice Vancise, the argument is why shouldn't the jury receive similar assistance from the trial judge. (E) The Address John Mitchell, a.c., in his paper to the National Criminal Law Program held at Victoria in July 1998, on "Arguing Legal Issues at Trial", quotes the story of the famous jurist, Oliver Wendell Holmes, setting out on a train journey. When asked by the conductor for his ticket, he searched for it frantically and, finally, with great embarrassment, had to say to the conductor, "I am very sorry, but I can't seem to find it". The conductor, who knew Justice Holmes, felt quite sorry to see the great man's discomfort. "That is alright, Judge, I am sure the railroad can trust you to send us in the ticket when you find it". Holmes did not appear relieved. "No", he said. "You don't understand. The problem is that without the ticket I don't know where I'm going." The message delivered in the context of an argument to a judge, is equally applicable to a jury address in a civil jury trial. It is preparation and knowing where you are going. One of Mr. Mitchell's suggestions, is to be a teacher. He writes:

23 Any good teacher will tell you that the basic lesson plan is broken into three parts. Firstly, the teacher tells the class what he is going to teach them. Secondly, he teaches the class. Thirdly, he tells the class what he has just taught them. Likewise, when presenting a legal argument you are in effect a teacher. It is always a good idea to tell the judge in point form where you are going to be them. Give the judge the opportunity to write down these points. In complicated cases, you might also wish to present a chart or a brief summary of your arguments in a type written form. This will make it easier for the judge to follow you. After giving the judge an outline of your argument, you must then develop it. Take the judge through the facts and then show how the facts apply to the law. Present your legal argument in a logical stepby-step basis. When you have finished developing your argument, sum it up briefly and invite the jury to deliver a decision in your favor. Alan Gold, in his paper to the 1998 National Criminal Law Program, although again in the context of a judge alone trial, similarly advises: No argument can be persuasive that appears to be a random, drunkards's walk through the byways of the law. You may have a valid forensic destination to which to go, but chances are slim that you will find it. Persuasion is greatly assisted by a logical order to the argument, especially since this usually evidences understanding on the speaker's part of where they are going and how they are going to get there. It has been said that an English appellate judge once told a counsel who was arguing before him in the midst of a jumbled submission with

24 - 24- no apparent logic or direction, "Mr. Smith, could you not put your submissions in some order, please; even if only alphabetical." Lori-Renee Weitzman, a Crown Prosecutor in Montreal, in her paper, outlines some practical considerations, although made in the context of a Crown Prosecutor's closing address on a criminal jury trial. They are, in my view, suggestions to be considered in any jury address, whether to a criminal or civil jury. It is trite, but also fundamental, that the preparation for the closing address beings long before the trial. The outline for the closing arguments should provide counsel with a clear theory of the case as well as a checklist of the elements which must be established through the evidence to be presented. An effective closing should be orderly, and allow the jury to take notes on the main points raised. It is often helpful to provide the jury with an overview of what will be addressed, in order for the jury to put each argument in its proper context. It is also useful to explain to the jury why certain questions were asked of witnesses or certain avenues explored. It is here, in the closing address and not during crossexamination that a factual conclusion or inference should be suggested. It is essential to avoid the temptation of putting the logical inference to the witness and allowing him an opportunity to change his answer or patch up an inconsistency. The closing address thus does not just highlight the important strengths and weaknesses of a case but it should also be a wrap-up that pulls all of the evidence together for the jury, the final brush stroke that visually completes the canvass. The exhibits may be used effectively at this stage without being overly theatrical. Counsel should be clear and concise, and respectful towards the jury as well as the judge and defence counsel. Without staring down the jurors, counsel should try to be aware of whether they are following and understanding, or in need of a short break. Of course, the

25 - 25- effectiveness df all of these suggestions in a given case will always be mere speculation as it is never possible to know from the jury what influenced their decision or helped them in reaching it. Peter Martin, Q.C., of Calgary, in one of his papers to the 1998 National Criminal Law Program and in dealing with advocacy, concludes: Deliver your argument in a clear, fluid and well paced manner. Speak with confidence and appropriate force and emphasis. Above all, be yourself. Finally, before preparing your first closing address, and occasionally thereafter, read G. Arthur Martin's (as he then was) classic speech: Closing Arguments to the Jury for the Defence in Criminal Cases: Special Lectures of the Law Society of Upper Canada on Jury Trials, 1959; republished (1967) 10 C.L.Q. p. 34. Each of the foregoing suggestions are valid and, in my view, useful techniques and guides in preparing a closing address to any jury. They can, I believe, be summed up by the advice of Judge Arthur Ahalt of the Seventh Judicial Circuit of Maryland: "Be a persuader, not a presenter".

26 - 26- Judge Ahalt presides over approximately 60 jury trials a year and notes as a major deficiency the lawyer's address to the jury. He has observed a failure by lawyers to establish "contact" and "identify" with the jury. Lawyers, he says, tend to focus on the logic of their case, rather than on persuading the jury why they should find in favour of their client. A jury address is not a classroom presentation by a Professor or a debate on legal concepts or principles. The role of counsel is to persuade at least five of the jurors why they should decide in favour of their client. Counsel may have, on the facts or the law, an apparently stronger case, but this means little if you are not able to persuade the jury to render a verdict in favour of your client. Justice Estey, in Dube v. Labar, supra, in concluding his reasons, acknowledged that another jury might have reached the conclusion that the passenger plaintiff had not, in the circumstances, absolved the driver defendant. Clearly, in that case, counsel for the defendant was able to persuade the jury that the plaintiff, by his conduct, had absolved the defendant of legal responsibility for his negligence. The importance of the jury's decision in the final outcome of that case is evident, having in mind the degree of deference an Appeal Court will afford a jury

27 - 27- verdict, even in circumstances where the judges of the court, as triers of first instance, might themselves have reached a different verdict. Justice Estey, at p. 663, said: The jury's conclusion that the plaintiff consented to bear the legal risk when he entered the car as a passenger, knowing of the defendant's state of impairment, is doubtless one that not every jury would have reached. It does not have the character of unreasonableness, however, that must be apparent on the face of a jury verdict before an appellate court can upset it: Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, McCannell v. McLean, [1937] S.C.R This case is rather of the sort considered in Scotland v. Canadian Cartridge Co. (1919) 59 S.C.R. 471, where Sir Louis Davies, C.J. wrote at p. 477: I say on this main and controlling issue I would as a juryman probably have found against the plaintiff. But that is not my province. I have only to determine whether in the conflict of evidence we have before us in this case, scientific and practical, we find enough to justify reasonable men in reaching the conclusion these jurymen did. After much consideration and thought I have reached the conclusion, though not without much doubt, that there is such evidence in the record and that I ought not, in view of the extreme jurisdiction which juries are permitted to have over questions of fact, to set aside their findings on mere doubts I may entertain or on my reaching of the evidence a conclusion different from that the jury reached. The paramount principle here operating is the duty residing in the court to sustain, so long as it be reasonable to do so, the jury's disposition of the issues without judicial intervention. The court is concerned, of course, at all times, with providing ultimate justice

28 - 28- consistent with the principles of law. Here, two routes lie open to a reviewing tribunal but in the selection of the appropriate route the paramount principle of support of a jury verdict governs. Despite, therefore, the potential of the jury charge to confuse, this appeal must be dismissed. It is not apparent from their answers to the questions put that the jury members were in fact, when in the throes of ultimate disposition of the issue, confused, nor is their conclusion on the vital issue of volenti so unreasonable as to justify its reversal by an appellate court. The jury address is your last contact with the jury and your final opportunity to persuade them to your clients' side. As such, while an otherwise "good" case can be lost by a poor address, a ''weak" case with an address properly and convincingly presented, may persuade at least five of the jurors to decide in your client's favour.