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The Art and Science of Jury Questions. David F. Smye, Q.C. 1

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The Art and Science of Jury Questions David F. Smye, Q.C.1

I. Introduction

For many trial lawyers, the practice of putting questions to the jury at the end of a trail may seem like a relatively straight forward exercise. In fact, most trial advocacy texts contain a series of sample jury questions or “verdict sheets” specific to certain types of actions. While some counsel may be tempted to rely on these basic and tested questions, I would advise trial lawyers to take the exercise of drafting questions seriously.

The purpose of this paper is to highlight some of the issues that trial counsel should consider when questions are to be put to a jury. The first section of this paper will outline the legal framework for jury questions and provide a brief historical context. Next, the paper will review the issues that counsel should consider when making submissions on the form and content of jury questions, as well as the judge’s charge to the jury. Finally, the author will suggest several strategic approaches to jury questions that counsel are encouraged to consider.

II. Legal Framework and Historical Context

Section 108(5)(a) of the Courts of Justice Act (“CJA”) 2 provides that where a proceeding is tried with a jury, the judge has the discretion to direct the jury to give a general verdict or to answer specific questions. The modern

practice is to submit specific questions to the jury. An exception exists in cases of

1

I would like to acknowledge Sabrina Seibel, an articling student with Mackesy Smye LLP, whose thorough research made this paper possible.

2

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libel or slander, which permits a jury to give a general verdict notwithstanding that the judge addressed specific questions to them.3 Section 108(5)(b) of the CJA allows the judge to enter the judgment in accordance with the general verdict or the answers to the questions.

In Rowan v. Toronto R.W. Co., the Ontario Supreme Court, Appellate Division, discussed the history of the practice of putting questions to the jury. Riddell J. wrote:

The power of the jury to give a general verdict was modified in 1873 by the Act 36 Vict. ch. 8, s. 20 (O.), which enacted that ‘Where the court or presiding judge shall otherwise direct, it shall not be lawful for such jury to give a general verdict, and it shall be the duty of such jury to give a special verdict if the court or presiding judge shall so direct.’ The following year, 1874, the right of the jury to give a verdict at all was taken away in certain cases: the trial judge, ‘instead of directing the jury to give either a general or a special verdict may direct the jury to answer any questions of fact…; and in such case the jury shall answer such questions, and shall not give any verdict; and on the finding of the jury upon the questions which they answer, the judge shall enter the verdict; and the verdict so entered, unless moved, against, shall stand and be effectual as if the same has been the verdict of the jury.’4

The purpose of putting questions to the jury was said to be a safeguard against the jury disregarding the law in favour of an emotional verdict.5

III. Making Submissions to the Trial Judge

Before the questions are put to the jury, counsel will have an opportunity to make submissions on both the form of the questions and the charge to the jury. The following are some considerations for counsel to keep in mind.

3 Ibid. 4 [1918] O.J. No. 120. 5

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Form of the Questions

While counsel should turn their mind to the questions that they want put to the jury before the start of a trial, it is advisable for counsel to wait until the end of the trial to discuss the topic with opposing counsel and the judge. It is only once both parties have called their evidence that you will be in the best position to decide how to best frame the questions you want put to the jury. In most cases, counsel should confer with the opposing party to canvas each other’s positions and attempt to come to some agreement. It will ultimately be up to the trial judge to decide the final form of the questions. In many cases, the trial judge will want to receive submissions from counsel and will try to work through any

disagreements together.

Counsel must ensure that the questions cover all of the central issues to your client’s case. In Andreas v. Canadian Pacific Railway Co., the Supreme Court of Canada held that the plaintiff must be considered to have abandoned additional allegations contained in the statement of claim when plaintiff’s counsel did not include these allegations in the questions submitted to the jury.6

In addition to deciding on the final form of questions, the trial judge has the discretion to put any material questions arising out of the evidence to the jury, whether counsel consent or not.7 Counsel must ensure that any objections they have to the questions are put on the record to protect your client’s right to appeal.

When making submissions on the content of the questions, counsel should ensure that the onus of proof is made clear to the jury. For example, in most negligence cases, the onus of proving the defendant’s negligence is on the plaintiff. However, in cases where a pedestrian is struck by a motor vehicle,

6

(1905) 37 S.C.R. 1.

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pursuant to subsection 193(1) of the Highway Traffic Act8, the onus is shifted to the defendant who must disprove his or her negligence.

The Supreme Court of Canada in Beach v. Healy, [1943] S.C.R. 272, ruled that in cases involving a reverse onus, the jury should not be asked to provide the particulars of the defendant’s negligence. This case was an action for damages for the death of the plaintiff’s son caused by his being struck by a motor vehicle driven by one of the defendants. At the trial the following questions were put to the jury and the answers were as follows:

1. Was the defendant, Theodore Beach Jr., guilty of any negligence which caused or contributed to the accident? (Answer yes or no.)

a. ANSWER: No.

2. If your answer to question 1 is “yes” then state fully the particulars of his negligence.

a. ANSWER: (Not answered.)

3. Was Ronald A. Healy guilty of any negligence which caused or contributed to the accident? (Answer yes or no.)

a. ANSWER: Yes.

We the Jurors found Ronald A. Healy guilty of negligence by

walking on a highway on a night where weather conditions were so poor for driving a car.

A good sidewalk was provided for pedestrians and was in better condition for walking on then on the highway.

4. If you answer to Question 3 is “yes” then state fully the particulars of his negligence.

a. ANSWER: (not answered except as above.)

5. If you find that Theodore Beach Jr. and Ronald A. Healy were both negligent state the degree of fault or negligence of each.

a. ANSWER: (not answered.)

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6. Did the plaintiff suffer any pecuniary loss or damage by reason of the death of Ronald A. Healy? (Answer yes or no.)

a. ANSWER: No.

7. If your answer to Question 6 is “yes” at what amount do you access the damages?

a. ANSWER: (Not Answered.)

The Ontario Court of Appeal set aside the verdict and judgment at trial and ordered a new trial. The Supreme Court of Canada restored the judgment at trial holding that there was evidence properly submitted to the jury upon which they might reasonably find as they did a verdict for the defendants. Writing for the court, Duff C.J. writes:

We think, however, we ought to say explicitly that the proper course was not followed in respect in the form of the questions submitted to the jury. These questions were considered by counsel and agreed to; and it appears that trial judges in Ontario have in this matter felt themselves under some constraint by reason of some observations made in this court in Landreville v. Brown [1941] [S.C.R. 473]. These observations were not sanctioned by the

majority of the court. The proper procedure is laid down by the court of appeal in Newell et al v. Acme Farmers Dairy, Ltd. [1939 O.R. 36.] In the report of that case the headnote is in these words:

Where in an action for the recovery of the damages for personal injuries allege to have been caused by the operation of a motor vehicle by the defendant, the onus of proof is on the defendant to disprove

negligence by virtue of section 48(1) of the Highway

Traffic Act, R.S.O. 1937, ch. 28, the only question the

trial judge should put to the jury as to the negligence of the defendant is as follows: “Has the defendant satisfied you that the plaintiff’s injuries did not arise from the negligence or improper conduct on the part of the defendant?” The trial judge should not put to the jury a further question or direction that, if their answer to the aforesaid question is “no”, they should

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state fully what acts or omissions constituted negligence on the part of the defendant [Emphasis added].

The Legislature enacted section 65(2) of the Judicature Act, now s. 108(9) of the CJA, to allow a judge to still ask the jury for the acts or omissions that the jury found to be negligent in cases dealing with s. 48(1) of the Highway Traffic

Act, now s. 193(1) of the Highway Traffic Act. An example of questions to be put

to the jury in a pedestrian case can be found in Appendix A.9

In all cases involving negligence, the jury will be asked to state the

particulars of the defendant’s negligent conduct. As early as 1904, the Supreme Court of Canada advocated for the practice of asking the jury for the particulars of negligence. In Spencer v. Alaska Packers Assn. 10, Nesbitt J. stated,

“…particularly in actions of negligence, it is well for a trial judge to get from the jury, by questions to be answered, the grounds specifically upon which they find negligence.” The Court referred to Lord Coleridge’s comments in the case of

Pritchard v. Lang11 with approval, in which Lord Coleridge wrote that not asking the jury to put the specific ground upon which they found negligence was

calculated to mislead the jury and to defeat justice.

In St. Amour v. Ottawa Transportation Comm., the Ontario Court of Appeal held that where a jury finds a defendant negligent but is unable to give particulars of such negligence, the action should be dismissed rather than ordering a new trial.12

The particulars allow the trial judge or an appellate court to scrutinize whether or not the jury understood the questions posed to them. In cases involving negligence, it is imperative that plaintiff’s counsel in their closing

9

Sopinka, Trial of an Action, p. 153; Ferguson, Ontario Courtroom Procedure, LexisNexis, 2009.

10 (1904) 35 S.C.R. 362. 11 5, Tines L.R. 639 at p.640. 12 [1957] O.W.N. 367 (C.A.).

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address emphasize the significance of giving particulars as well as telling the jury exactly what those particulars should be. In all cases where questions are put to the jury it is important that counsel tell the jury how they should answer each question.

The Charge to the Jury

Before the judge charges the jury, he or she will likely ask counsel to make submissions on the content of the charge. Counsel should ensure that the judge carefully explains the questions to the jury as part of the charge. For an example of a charge on the questions see CIVJI: Civil Jury Instructions by Mr. Justice R. Dean Wilson, Madam Justice Lauri Ann Fenlon and Mr. Justice Christopher Grauer. Again, counsel must make sure to put any objections either before or after the charge on the record.

In any jury trial it is critical that the judge correctly instructs the jury on the law. It is also important that the law is correct in the questions that are put to the jury and that these questions are consistent with the charge. In the case of

Laidlaw v. Couturier, the British Columbia Court of Appeal noted that at trial, the

judge’s charge to the jury and one of questions stated on the question sheet, were inconsistent.13 It is noteworthy, that the Court of Appeal acknowledged that one of the parties objected to the charge to the jury and the questions he

submitted to them.

In Laidlaw, Kirkpatrick J.A. cautions against the use of questions that reveal the juror’s deliberations: “question sheets such as this one that asks the jury to answer questions that tend to reveal their deliberations are not helpful, invites appeals, and are to be avoided.”14 Excerpts from the instruction sheet and question sheet from Laidlaw are attached as Appendix B.

13

2010 BCCA 59.

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In Gentles v. Toronto (City) Non-Profit Housing Corp.15, an action for damages based upon false arrest, assault and imprisonment, the trial judge put 39 questions to the jury. The jury responded with answers that were puzzling and inconsistent. The Court of Appeal noted that neither counsel nor the trial judge sought clarification of the jury’s answers. Moreover, the Court was critical of the gaps in the questions put to the jury as well as the trial judge’s charge. The Court of Appeal also noted that the jury should be instructed that if they are unable to find a fact, they should simply say so.16 Instead, the trial judge attempted to reconcile the inconsistent answers by ultimately making his own findings of fact, exceeding his role as the presiding judge in a trial by jury.

These cases demonstrate the importance of providing the jury with clear and complete questions and a comprehensible charge. During the charge to the jury the trial judge should also caution the jury against giving vague and indefinite answers and answers that do not amount to a finding in law.17 Failing such, the parties will undoubtedly find themselves before an appellate court.

IV. Strategic Considerations

The following section will discuss two strategic approaches to jury questions. First, whether or not counsel should ask the jury to particularize a damage award. Second, how counsel can improve juror comprehension of legal instructions to avoid inconsistent answers.

15 2010 ONCA 797. 16 Ibid at para 98. 17

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Asking the Jury to Particularize Damages

While generally the questions to the jury should be framed so as to allow “yes” or “no” answers or for a figure to be provided, counsel may wish to ask the jury to particularize damages.

In the case of McIntyre et al. v. Grigg et al., counsel for the plaintiff put the question of both aggravated and punitive damages to the jury but did not ask for particulars. The jury awarded $100,000.00 in aggravated damages and

$100,000.00 in punitive damages as against the defendant driver.18 The

defendants appealed the verdict to the Ontario Court of Appeal.19 The Court of Appeal allowed the appeal of the award for aggravated damages and reduced the award of punitive damages for being disproportionate to the misconduct in this case. It is possible that had the jury been asked to specify the “reprehensible or outrageous conduct” by the defendant in the case of aggravated damages or the “high-handed, malicious or oppressive” misconduct of the defendant in the case of punitive damages, then the defendant may not have been successful on this ground of appeal.

In his paper, How to Frame Your Questions to the Jury, Alfred Kwinter writing from a plaintiff’s perspective, cautions against asking a jury to list the reasons why it awarded punitive damages.20 Kwinter refers to the case of Plester

v. Wawanesa, which he tried before a jury and asked the jury to provide the

particulars to a punitive damage award. Upon receiving the jury’s reasons, Kwinter was concerned that some of the conduct listed did not come within the “high-handed, malicious, arbitrary or highly reprehensible” category as described by Justice Binnie in Whitten v. Pilot Insurance. In Plester, the defendant insurer appealed and the Court of Appeal found that some of the reasons listed by the jury did not justify a punitive damage award. However, the Court of Appeal did

18

See Appendix C for the Jury Questions and Answers in McIntyre.

19

McIntyre et al. v. Grigg et al., 83 O.R. (3d) 161.

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find that there were sufficient reasons to justify the jury’s punitive award and did not allow that ground of appeal.

These two examples demonstrate that the decision to ask the jury for the particulars supporting an award for aggravated or punitive damages will vary case by case. At the very least, it is a strategy that both plaintiff and defence counsel should consider.

Improving Juror Comprehension

Studies suggest that a jury’s ability to comprehend legal instructions is poor.21 During a trial, the jury is given a large amount of material to digest and then is told to answer potentially difficult questions. In some cases, the jury’s confusion will become apparent once it returns with questions for the trial judge. However, in other cases, the jury’s confusion will not be apparent until it provides the court with the answers to the jury questions.

For example, in Maher v. Great Atlantic & Pacific Co. of Canada Ltd.,22 the jury answered questions indicating that there was no liability and were

discharged. The following day, the jury appeared to calculate the plaintiff’s damages and appeared stunned when informed the plaintiff would receive no money. The Court refused to conduct an inquiry into whether the jury had made a mistake as the jury’s questions had been clear and unambiguous and the jury was functus.

The Ontario Court of Appeal23 found that once the jury has been

21

See Marie Comiskey, “Initiating Dialogue About Jury Comprehension of Legal Concepts: Can the ‘Stagnant Pool’ be Revitalized?” (2010) 35 Queen’s L.J. 625.

22

2008 Carswell Ont 8275 (S.C.J.).

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discharged, the trial judge has no jurisdiction to have the jury conduct further deliberations to correct a possible error in the verdict. However, before a jury is discharged, the judge may send a jury back for further deliberations.

As counsel, it is our obligation to find techniques that can assist the jury to understand the complex issues they are faced with and to avoid outcomes like the one in Maher. This may require devising new strategies and approaches. For example, it is important to remember that many of us are visual as opposed to auditory learners. Counsel should be encouraged to use Powerpoint

presentations, charts, diagrams, or other visual tools to simplify complex issues.

For example, in Resch v. Canadian Tire Corporation et al.24, counsel agreed to formulate the questions to the jury on the issue of damages for future care in the form of a chart. A copy of the chart can be found in Appendix D.25 The chart set out in the first column, the needs of the plaintiff as identified by both parties such as surgical procedures, psychology, occupational therapy,

equipment and medications. The second column outlined the cost of each need according to the evidence of the plaintiff’s expert. The third column outlined the cost of each need according to the evidence of the defendant’s expert. The final column provided a space for the jury to insert a number for each need as they found appropriate. The jury was also provided with the multiplier to provide the present value for each annual and future care cost found.

The approach taken by counsel in Resch allowed the jury to easily choose between the evidence of each party’s expert and making findings based on each need. This type of innovative advocacy should be commended and encouraged. A chart such as this one could also be used in cases involving complex future economic loss claims. A chart could similarly be used to clearly articulate the evidence given by experts regarding loss of earning capacity.

24

(2006) 17 D.L.R. (4th) 301 (Ont. S.C.J.).

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V. Conclusion

While counsel may be tempted to use standard questions that have been put to the jury in previous cases, it is a worthwhile exercise to craft questions specific to your case. Thought should be given to the wording and form of each question. This includes ensuring that the onus of proof is clear and in cases involving negligence that the jurors are asked to state the particulars. Counsel should also take the time to ensure that the judge includes an explanation of the questions in the charge. The questions should then be restated by counsel in their closing address, with a clear indication of what the jury’s answers should be.

Finally, using innovative strategies, such as the chart provided to the jury in Resch, should be carefully considered by counsel in every case. Not only do these strategies assist your client in getting the most favourable results, more importantly, they will also help ensure that the verdict will be upheld in the event of an appeal.

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“ A p p e n d i x A ”

Q U E S T I O N T O J U R Y

Pedestrian Case

Ql. Has the defendant satisfied you on the whole evidence that the

loss or damage sustained by the plaintiff did not arise through the

negligence or improper conduct of the defendant, the owner (or

driver) of the motor vehicle?

Ans. Yes or No.

Q2. Was there negligence on the part of the plaintiff which caused

or contributed to the accident'?

Ans. Yes or No.

Q3. If your answer to question No. 2 is Yes, then state fully and

clearly the particulars of such negligence.

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“ A p p e n d i x B ”

Excerpt of Instruction and Question Sheet from Laidlaw v. Couturier, 2010 BCCA 59

28 The trial judge later instructed the jury as to how to approach the defendant's

responsibility as reflected in the question sheet provided to the jury. The instruction reads:

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Assess as best you can which of any of Mr. Laidlaw's complaints were

materially caused or contributed to by the May 2004 collision. If you find that he suffered no injury or loss from the first accident, then you must award him no damages. His claim will then stand dismissed.

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Assess Mr. Laidlaw's overall or global damages as of today; that is to say, assess his damages for all of the complaints that he has brought forward, even though those complaints may have been caused or exacerbated by the second accident, and deduct from those damages any amount by which you find that Mr. Laidlaw has failed to mitigate his loss.

(3)

Decide whether there was a measurable risk that Mr. Laidlaw would have suffered from some or all of his complaints, even if the first accident had not happened. If you decide that there was a measurable risk of that, then assign a percentage to that task.

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Decide whether the second accident exacerbated Mr. Laidlaw's complaints or perhaps caused new complaints. If you decide that it did, then assess the percentage that Mr. Laidlaw's complaints after the April collision are

attributable to that collision, and for convenience I set out that process in the questions you should answer as a guide to reach a verdict.

This instruction does not include all of the analytical steps referred to earlier in the charge and is inconsistent with question 3 of the Question Sheet.

29 The question sheet as completed by the jury is as follows:

1.

Did the May 2004 collision materially contribute to the physical and psychological complaints the plaintiff has made since then?

[ ] No: Award no damages and do not answer the rest of the questions. [[check mark]] Yes: Continue to answer the

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2.

What is the total amount of damages you would award to the plaintiff for all of his physical and psychological complaints, after deducting for any failure to mitigate, as of the date of trial:

Non-pecuniary loss $ 120,000

Past income loss $ 7,500

Reduction of earning $ 0

capacity

Past special damages

medications $ 423.28 physical therapy $ 405 massage therapy $ 155 chiropractic care $ 180 counselling and $ 0 psychological diagnostic procedures $ 0 special equipment $ 54 Cost of future care

medications $ 0 physical therapy $ 0 massage therapy $ 0 chiropractic care $ 0 counselling and $ 0 psychological diagnostic procedures $ 0 special equipment $ 0 • Question #2 Total $128,717.28 ([128,800]) 3.

Was there a measurable risk that the plaintiff would have suffered from the physical or psychological complaints even if the May 2004 collision had not happened?

[ ] No: Go to question 4

[check mark] Yes: State the percentage of risk that the plaintiff would have suffered the complaints even if the May 2004 accident had not happened: 85%

(The plaintiff's total damage award at question #2 will be reduced by this percentage.) 4.

Did the April 2005 collision materially contribute to the plaintiff's complaints after April 2005?

[check mark] No

[ ] Yes: State percentage of complaints after April 2005 that are attributable to the second accident: %

• (The plaintiff's damage award at question #2 will be reduced by this percentage.)

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