The ruling of Mr. Justice Peter Lauwers in Trypis v. Lavigne is helpful for trial lawyers because it deals with aspects of counsels’ jury addresses that Justice Lauwers held to be improper.
This was a slip and fall case. At trial, counsel for the plaintiff opened to the jury. The defence lawyer did not immediately object and he delivered his own opening address. The next day though, defence counsel said that overnight, he had concluded that the address of the plaintiffs’ lawyer had been “way over the line” and “extremely inflammatory”. He asked for a mistrial. On the argument of the mistrial motion (which took place later during the trial), counsel for the plaintiff raised his own objections to what had been said in the defence opening.
Justice Lauwers dismissed the motion for a mistrial. He agreed that some aspects of the addresses on both sides had been improper, but decided that he could provide corrective instruction to the jury, largely because the transgressions, in his view, had not been severe. His instruction to the jury is appended to his reasons and is worth reading.
Address by plaintiffs’ counsel
Justice Lauwers referred to the well-known text by Justice Donald S. Ferguson and others, Ontario Court Procedure, as well as to the Court of Appeal’s decision in Brochu v. Pond, for the proposition that inflammatory remarks, argument and the expression of the personal opinions of counsel are all impermissible in an opening address to the jury.
Here, the defence took exception to the following statement by plaintiffs’ counsel: “”Only the six of you have the power to right a wrong. Only the six of you have the power to award full and fair compensation. Only the six of you have the power to do justice in this case.”
Interestingly, Justice Lauwers quoted from a book by Barrie lawyer Roger Oatley, Addressing the Jury, in which Mr. Oatley recommends that, when acting for a plaintiff, “you want each juror…to feel motivated and empowered to right the wrong done to your client” and “to be committed to action for righting a wrong.” Justice Lauwers remarked that the “virtual quotes” from the Oatley text by plaintiffs’ counsel in his address, had gone “well beyond persuasive narrative” and amounted to argument. In his corrective instruction, Justice Lauwers told the jury, in no uncertain terms, that counsel’s exhortation that the jurors “right a wrong” was inflammatory and should be disregarded. Likewise, of the portion of the address in which counsel had told the jury that “only the six of you have the power to do justice in this case”, Justice Lauwers told the jury, “that is not your role”.
Another aspect of the address by plaintiffs’ counsel that was criticized by Lauwers J. also related to the jury’s role. Counsel had told the jury that “you’re the judicial system in this case”. Justice Lauwers said that this was simply inaccurate, that the members of the jury had a role to play in the judicial system but that so did the parties, the lawyers and the judge himself.
Justice Lauwers also criticized plaintiffs’ counsel’s statement that “”[y]ou have power to decide on justice between Phil Trypis and his family on the one hand and the Lavigne family on the other hand, it’s your power.” His Honour, in his corrective instructions, said, ” [i]t is not appropriate for you to take sides in this case in the way that Mr. Will’s [plaintiffs’ counsel] statement suggests.”
Address by defence counsel
The main problem with this address was the following statement, made by counsel about his clients, the defendants: “Make no mistake about it, they are being asked to pay a lot of money, hundreds of thousands of dollars, so that’s what this case is about.”
Justice Lauwers felt that this might have misled the jurors into thinking that an award of damages would have to be paid by the defendants personally. In his corrective instruction, he said, “it implies wrongly that the personal assets of the defendants are at risk here and that they have no homeowners’ insurance. Ability to pay is, in any event, an irrelevant consideration.”
(We’ve obviously come a long way from the days when a mistrial could result from suggesting to a jury that there was insurance to respond to the claim. It seems that now, it’s improper to suggest that there is not insurance available.)
Defence counsel also drew some criticism for characterizing the litigation as a “family feud”. Justice Lauwers said that this was inflammatory and might encourage the jury to take sides.
All in all, an instructive read for both plaintiffs’ and defendants’ lawyers.