Law Times

Law Times • may 9, 2016 Page 11 www.lawtimesnews.com FOCUS Untitled-2 1 2016-05-04 11:39 AM Cost saving ignored? Abolishing civil juries BY JUDY VAN RHIJN For Law Times W ith all the enquiries and reforms aimed at cutting costs in the civil litigation system, there is a cost-cutting measure that is being ignored, according to Patrick Brown of McLeish Orlando LLP. As the integrity of the jury system decreases due to media contamination and reluctance by community members to ser- vice long trials, even those with a value for the system agree it's time to take another look. Brown is issuing a challenge to the government. "If they really want to cut ex- penses instead of cutting dam- ages, you could get rid of a big chunk of expenses by abolishing civil juries," he says. He makes a call for change in the context of a court system that is severely overstrained. "Right now, the whole civil system is backlogged. A large percentage of civil cases are personal injury cases, and the government is trying to control costs by reducing benefits and placing restrictions on the ar- eas you can claim. An area they didn't look hard at is civil jury trials," he says. There is little doubt that jury trials take much longer and are much more costly than trials by judge. "They double the length of the trial, increase lawyers' time, increase costs, the judge sits for double the time, and people from the community are out of work," argues Brown. "There is a huge impact on the entire system." Kristian Bonn, a plaintiff personal injury lawyer at Bonn Law, says there's some value to the civil jury system, but he does not dispute that jury cases are more costly. "In my experience, juries in- crease the length of a trial by at least 25 to 50 per cent. Jury trials have different procedures, with generally a full day of jury selec- tion. The opening is more in- volved and the jury has to be ex- cused for evidentiary arguments. It's costly not just to the parties but to society, which has to pay for the judges, the clerks, and the court buildings," she says. Lawyer and commentator Alan Shanoff does not think that cost should be the deter- mining factor. "Obviously, it costs more. There is a whole infrastructure to deal with jurors — getting them into court, dealing with them in the courthouse, getting them into trials — but I hate to look at it in terms of dollars and cents," he says. "If juries make some sense for justice, you don't get rid of them because of the cost. You wouldn't get rid of them in criminal tri- als. No one is suggesting that. If there is a justice reason to keep them, then it's worth it. The ex- pense is irrelevant." Having said that, Shanoff is completely on the side of those who see no reason for retaining the use of juries in civil trials. In fact, he sees an "access to justice" benefit in abolishing them. "The major reason is that, while juries have some common sense, when you put a personal injury or wrongful dismissal case before them, they don't have the expertise or ability to handle it as well as a judge. Judges sit frequent- ly. They know the law, the proce- dure, and how to assess an expert witness. How is a jury to know about awards and a common law reasonable range?" he says. Brown notes that many ju- risdictions don't allow juries for most civil trials and the U.K. doesn't allow them at all. "The people who want it are some plaintiff lawyers and de- fence lawyers for the insurance companies. They know they can get shadow victories from per- verse judgements," he says. "Look at who serves jury no- tices in Ontario," says Shanoff. "It's primarily insurance de- fence lawyers. Do you ever hear of a commercial lawyer serving a jury notice? Why is it that com- mercial litigators want judges and defence lawyers in personal injury cases want juries? What do they know? Juries are unpre- dictable and they don't mind rolling the dice." Apart from the increasing complexity of cases, jurors are also inf luenced by billboards, adver- tising, and other types of media, devaluing the integrity of their decisions, according to Brown. "Historically, most people didn't have contact with the me- dia. They had restricted newspa- per access and were sequestered in hotel rooms. Now we've got the jury going home with access to computers and iPhones. They can Google me, and the plain- tiff, and the defendant. If they hear an engineering expert, they do their own research on engi- neering." LT Patrick Brown says abolishing civil juries could make a difference for a court system that is severely overstrained. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Untitled-1 1 2016-05-04 11:13 AM

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