Civil Jury Trials - Number of Jurors - Challenging Jurors for Cause

 

Trial by a civil jury empowers citizen jurors who hold no office and have no professional status. It helps strengthen their confidence in the judicial system.

Jurors are a part time institution of government. They have no ambitions of their own and are therefore worthy of trust.

They are free of any direct personal interests in their verdic

Professor Paul D. Carrington,

Duke University, N.C., 2004

1. Introduction

    This is a slightly edited version of a paper I delivered at a Continuing Legal Education Conference in Vancouver, B.C. on 11 September 2009.

  Trial by a civil jury in B.C. declined significantly over the last 40 or so years to about 2%-3% of all civil trials. Much of this happened because B.C. government rule makers neglected to modernize the rules governing civil jury trials. The rest can be blamed on the atrociously high hearing and jury fees that the B.C. government penalizes litigants who seek a civil jury trial.

  This paper recommends new procedures and practices that will help rejuvenate trial by a civil jury.

2. Number of jurors

    At one time in Canada and England all criminal and civil jury trials were heard by 12 jurors. In 1964, the English Court of Appeal abolished civil jury trials in England and Wales except for defamation actions.

  American State civil jury trials started with 12 jurors. Now, most State civil jury trials are heard by 6 jurors. American studies found there is little difference in the quality of decisions whether there are 12 or 6 jurors. About 65% of all American State civil trials are tried with a jury.

   B.C. civil jury trials started out with 12 jurors. Subsequent provincial legislation reduced the number to 8, where it stands today. In the other eight Canadian common law provinces, some provinces have 7 person juries and some 6.

   B.C. should change its legislation to allow for 6 person civil juries.

3. Pre-trial investigation of juries

  When England had civil jury trials it never allowed any pre-trial examination of jurors to test them for possible bias. It just wasn’t done! American’s did the opposite. U.S. counsel have the right to examine potential jurors through a process they call a "voir dire." It used to take several days to complete. Now it lasts around two to three hours.

   Up to approximately the end of the 1970’s, B.C. Sheriffs usually provided counsel with a list of potential jurors a week or so before the trial. Some counsel hired private investigators to learn more about each juror. Others just ordered credit reports from a credit agency. Most did nothing. Because of privacy concerns, gradually Sheriffs stopped providing counsel with the jury list until a few hours before the trials began.

4. Challenging jurors for cause

   Section 20(2) of the B.C. Jury Act states: "Each party is entitled to challenge any of the jurors for cause."

   Because there are no B.C. Rules of Court outlining the procedure, there is no governing process to guide lawyers and judges in challenging civil jurors for cause. There are only peremptory challenges. These are challenges each side may use to disqualify a potential juror without assigning any cause for the challenge. Assuming there is just one plaintiff and one defendant each side may exercise four peremptory challenges.       

    Given these circumstances, Sheriffs will usually summons around 20 potential jurors. Eight are for the jury panel; eight more if both counsel use their four peremptory challenges and four spares in the event some acceptable jurors are excused by the judge for valid reasons such as sickness, etc.

5. American challenge for cause procedure

   Apparently there are no published American rules on challenging civil or criminal jurors for cause. American trial judges have their own individual systems. They design them to ensure the parties receive a fair and impartial jury. In many states and the federal system, judges question the jurors, not counsel. Appellate courts rarely interfere with trial judges’ procedures.

   Even if potential jurors answer questions indicating they would rather not be on the jury, judges may ask them a question along the following lines: "But even though you do not want to serve on this jury, if you are chosen will you be able to decide the case fairly and impartially according to the evidence and the law?" If the potential juror answers "yes" as they usually do, any challenge for cause will fail.

   The general standard for excusing a potential juror for cause is whether the individual "has a state of mind that is likely to preclude him or her from rendering an impartial verdict based on the evidence adduced at trial."

   American literature indicates that on average about one in twenty potential jurors are excused for cause

6. Proposed B.C. challenge for cause procedure

   Following is a suggested challenge for cause procedure designed to take no more than two hours in the B.C.S.C.

1) At least two days before the trial, counsel should exchange between themselves and provide the judge with a list of questions they wish the judge to ask the jury. It should contain no more than two double spaced letter sized pages. Sheriff’s should supply counsel and the judge with a "Juror Information Sheet."

2) With the 20 or so potential jurors in the courtroom, each counsel should read out the names and occupations of the witnesses they intend to call and a brief description of their testimony. They should provide the judge with a copy of the list.

3) The Clerk should then randomly select 12 potential jurors to come forward and sit in the jury box. The Clerk should then ask them to stand, raise their right hands and swear to any questions that counsel or the judge may ask.

4) The judge will then ask the 12 potential jurors individually or collectively to answer the appropriate questions taken from counsels’ list and any other questions the judge thinks necessary. The judge reserves the right to edit the list.

5) Where the claim involves a motor vehicle accident, one question might be: "Have you or anyone you respect had a bad experience with ICBC that may prejudice you against it in these proceedings. Alternatively, if you decide to award the plaintiff damages can you put out of your mind the fact that any award you make may only have an infinitesimal effect on your ICBC premiums?

6) After the judge asks the questions and gets the answers from the 12 potential jurors, counsel may then exercise their right to challenge them one by one alternately. If they do not succeed on any application to challenge a potential juror for cause, they may use one of their four peremptory challenges.

6) Once eight jurors are selected from the twelve first summonsed, the remaining eight potential jurors plus those successfully challenged may leave. If fewer than eight are selected, they will be asked to take a seat in the courtroom and the Clerk will ask the remaining eight potential jurors to come forward as a group and take a seat in the jury box.

7) The procedure used for examining the first group of potential jurors should be followed for the remaining eight without being too repetitive.

8) Once eight jurors are accepted, they should be sworn in as jurors to decide the case and the trial will then begin. Those not accepted to serve will be excused.

This is a rough outline of the challenge for cause procedure. Actual practice may vary from some of the above procedures.

7. Witnesses' testimony containing the word "insurance"

        For many years, B.C. trial judges would have to declare a mistrial in a civil jury case if a witness used the word "insurance" during his or her testimony. Without any empirical evidence, appellate courts automatically assumed that jurors would award a plaintiff a much higher than usual sum of damages if they believed the defendant was insured for the loss.

   Today, in any automobile accident case most jurors know that because of compulsory government insurance all defendants are insured for most awards. Testimony given during the course of the trial will often use the phrase ICBC as in "I went to see the ICBC doctor."

   Few trial judges will declare a mistrial today because of that. They will usually tell the jury, "that they should only award reasonable compensation based on the evidence. Just because the defendant has insurance should not affect the size of their award one way or another."

8. Counsel arguing the range of non-pecuniary damages

   Section 6 of the Negligence Act states that; "In every action the amount of damages or loss ... (is) a question of fact." It is trite law that in judge alone trials counsel have the right to argue the facts arising from the evidence. That includes the amount of non-pecuniary damages.

   On the other hand, BCCA case law following the English Court of Appeal says that counsel should not argue the amount of non-pecuniary damages before the jury. Yet, counsel may argue the amount of all other heads of damages such as past and future loss of income, special damages, etc.

   Counsel have the common law right to argue what facts the jury should find from the evidence. By statute, the amount of all damages is a question of fact arising from the evidence. Therefore, counsel have the right to argue before the jury the amount of non-pecuniary damages the plaintiff should recover.

   In most cases juries do not know what reasonable amount of non-pecuniary damages the plaintiff should recover when they find liability. Allowing counsel to argue those amounts before the jury will assist them in arriving at a reasonable award. Often this will save the parties the cost of appeals and new trial orders. 　

9. Interviewing jurors after the verdict

An unreported 1968 oral decision of the BCCA states that it is contempt of court for a lawyer to discuss the case with a jury after the entry of a verdict. Until then, lawyers usually interviewed the jury after the trial.

  Following an American jury trial, trial judges often ask jurors if they would mind waiting in the jury room since counsel may wish to ask you them a few questions about the trial. They also tell the jurors that they have no legal obligation to speak to anyone about the case. Where jurors agree to be interviewed, counsel often learn from the jurors what did or did not help them arrive at their verdict.

  Similarly, the media may interview jurors. Those interviews generally increase public confidence in the jury system.

   In 1982, s. 2(b) of the Charter of Rights and Freedoms gave every Canadian the right to "freedom of expression." Hence, jurors have the freedom to discuss the trial proceedings after their verdict with anyone should they so choose. Apart from threats of physical violence from other jurors or pressure from outside sources, anything that jurors say to counsel or the media after the trial will not affect the verdict they rendered.

10. Bottom Line:

 

• Most trial judges like civil jury trials. Juries relieve judges from the onerous task of writing lengthy judgments after the trial in order to meet the demands of the appellate courts. This may take months while the litigants wait patiently for the result. On the other hand, civil jury litigants produce a decision shortly after the trial ends.
• Adoption of the procedures recommended above will help improve the quality of jury verdicts and begin the process of regaining public confidence in the B.C. civil justice system.

 

Honourable John C. Bouck

Supreme Court of British Columbia (retired)

15 September 2009

 

CIVIL JURY TRIALS – CHALLENGING JURORS FOR CAUSE – LEGISLATORS AND JUDGES AS JURORS

The voir dire process may impress upon the jury
the importance of their task and may enhance their awareness
of their duty to decide the case fairly and impartially

      Zeisal and Diamond
      Stanford Law Review
      30 (1978) 512

1. Introduction

   For those that do not know what the above words “voir dire” mean, American law refers to it is the process for empanelling jurors to try civil and criminal cases. Canadian law interprets their meaning as a trial within a trial.
   Some of the problems mentioned in my posting of 24 May 2009 arose in a recent Vancouver civil jury motor vehicle accident trial causing the trial judge to declare a mistrial. He did so because jurors expressed a concern that their own motor vehicle insurance premiums might go up if they gave the plaintiff a high damage award.
   Applying English case law, the B.C. appellate court decided that B.C. lawyers should not suggest to a jury an appropriate range for an award of damages covering the plaintiffs claim for compensatory damages (pain, injury, suffering and loss of enjoyment of life). Nor can trial judges do so since the amount of those damages is a question of fact and facts are for the jury not for the judge.
   Apparently frustrated by the lack of assistance they received on this issue, one juror collected information on damage amounts from the web. Those amounts were not evidence in the trial. Therefore, the jury should not have taken them into account in its deliberations.
   Because of these procedural errors, the trial judge declared a mistrial. That caused both sides the extra expense of a second trial in about 6 to 12 months.
   This posting suggests how some of these errors can be corrected.

4. Summonsing the jury panel – politicians and judges

   Under our quirky Constitution, provincial legislators enact the laws on summonsing eligible individuals for jury duty in both civil and criminal cases. Thereafter, federal legislators enact the laws on the empanelment of jurors in criminal cases. Provincial legislators enact the laws on the empanelment of jurors in civil cases.
   The B.C. provincial Jury Act describes the kind of people who are disqualified for sitting as jurors in both civil and criminal trials. Interestingly, the Act exempts members of the federal Parliament, the provincial legislature and judges from jury duty.
   Federal and provincial legislators are not the people’s masters. They are the people’s servants. Why should these legislative servants escape their civic responsibilities of jury duty when their masters cannot? So long as legislators do not have to attend sittings of their respective legislative bodies they should be eligible for jury duty. Probably, they would only serve on one jury during their lifetime.
   The same goes for judges. Their names should be on the jury list so long as they are not engaged in judicial duties. Like most Canadians they will probably serve on just one jury. 
   These three groups of people either make or apply the law. What better way to discover if jurors have difficulty in using that law to achieve justice? Their participation as jurors from time to time will make them better legislators and judges. It will also serve as a reminder that they are the servants of the people not their masters.

2. Posting of 24 May 2009 – juror information sheet 

    My posting of 24 May 2009 recommended the adoption of a comprehensive juror information sheet and a challenge for cause procedure. Right now, potential B.C. jurors do not have to reveal information about themselves except for their municipal residence and their occupations.
   Perhaps counsel on the next civil jury trial can persuade the trial judge at a pre-trial hearing that jurors be required to complete an information sheet. With that in hand, perhaps the trial judge would agree to a challenge for cause procedure. 
   A suggested form for a juror information sheet can be found at this link: http://www.courtinfo.ca.gov/forms/fillable/mc001.pdf
 Now to a suggested procedure of challenging civil jurors for cause.

3. Challenging civil jurors for cause – English or American procedure

   B.C.’s Jury Act gives the parties the right to challenge jurors for cause. For unknown reasons, the B.C. Cabinet declines to publish the necessary rules although it has this authority under the Court Rules Act.
   Two models exist for this process. Canada’s Criminal Code outlines a process for challenging jurors for trial in criminal cases. Like so many procedural Code sections, it is based on ancient English laws, leaves out vital steps, and takes too much time. Drafting similar civil rules would invite lengthy debate and likely end in failure.
   The second is the American model. There does not seem to be any published rules governing the process. It is very flexible. Appellate courts give trial judges a wide discretion and rarely interfere.
   A helpful book written by Randolph N. Jonakait – The American Jury System, Yale University Press, Chapter 10, outlines the challenge for cause process in American courtrooms for both civil and criminal trials.
  Usually 12 potential jurors selected randomly from the jury pool come to the courtroom, and take an oath to answer any question truthfully that counsel or the judge might ask. They are then examined individually by the judge or counsel. Counsel may ask the judge to disqualify a juror because of bias. When this happens, judges will often ask the potential juror: “In spite of your present views, do you think you can reach a fair verdict based on the evidence you will hear and the law I will give you?” Almost always jurors will agree they can and those jurors are then empanelled.
   Mr. Jonakait estimates only one juror in twenty is excused from jury duty for cause.

4. Challenging Canadian civil jurors for cause – modifying the American procedure

   Presently, provincial Sheriff’s officers summons eligible jurors for both civil and criminal trials. In criminal cases, Sheriffs usually summons about 75-100 people for say 4 criminal trials. Without a challenge for cause procedure, usually the process can empanel 48 jurors in one day. Judges then tell these jurors to come back for their four respective trials at four future days when those trials begin.
   In civil cases, the Sheriff summons about 20 individuals to make up an eight person jury. Each side has four peremptory challenges – dismissal of a juror without having to show cause. If they use these four challenges that leaves 12 persons out of the original 20 available for selection to sit as jurors. 
   The twenty potential civil jurors summonsed may not be sufficient if the parties exercise their right to challenge individual jurors for cause. However, the Sheriff could summons around 80 jurors for the empanelment of 32 jurors to try four civil cases. A potential juror challenged in one trial might be accepted as a juror in one of the three other trials.
   American experience indicates it can take around two hours to empanel a civil jury using the challenge for cause procedure. B.C. lawyers and judges should be able to do the same. After the parties agree to the selection of eight jurors for each of the four trials, the judge will give them a date to return for these trials.
   As mentioned in other postings, provincial legislators should amend the Jury Act to provide for six jurors not eight. There are no studies proving that eight jurors produce better justice than do six. Similarly, the rules might consider the appointment of one additional juror as an alternate. He or she would sit with the other six jurors during the trial in case one of the six regular jurors becomes unable to act. Verdicts should be unanimous.

Bottom line:

1. History proves that autocratic leaders never tolerated trial by jury. As an English judge once said; “… it is the lamp that shows that freedom lives.”
2. Canada’s parliamentary system of government is another form of autocracy. Controlled by Prime Ministers, federal legislators have almost eliminated trial by a criminal jury through design or neglect. Provincial Premiers have not complained. B.C. Premiers have done the same to civil juries by neglecting necessary reforms and charging the parties outrageously high governmental fees.
3. To restore our democracy, Canadians should promote and encourage the reform and maintenance of our civil and criminal jury trial system.
4. Adopting the many jury reforms mentioned on this site would be a giant step forward.
8 June 2009

CIVIL JURY TRIALS – CHALLENGES FOR CAUSE – JURORS’ PRIVACY

All that it takes for bad laws to prevail is for enough

good lawyers and judges to do nothing

Edmond Burke

1729-97 (edited)

  1. Introduction

    A 20 May 2009 article in the local paper describes a situation dealing with jurors’ right to privacy. In that case, the lawyer representing the defendant’s insurer asked the insurer to provide her with the personal claims history of the eight jurors already chosen to try the case. The trial judge considered this practice improper. Had defence counsel shared the information with plaintiff’s counsel perhaps that would have been acceptable.
    British Columbia has compulsory third party liability insurance for all motor vehicle owners through a government insurer titled: Insurance Corporation of British Columbia (ICBC). Therefore, ICBC would have the claims history of any jurors who owned a motor vehicle. Presumably, the defence lawyer wanted to use this information as an aid in presenting her defence.
    This posting discusses the right of parties to gain information from potential jurors before they are empanelled to determine whether they could fairly try the case based on the evidence they would hear.

CIVIL JURY FEES – UNAUTHORIZED SECRET MEMOS - ILLEGALITY

1. Introduction

   A posting dated 8 April revealed a secret memo titled “Deposit for Civil Jury Trials Effective November 3, 2003” (the 2003 Memo).  Thanks to information I recently received from a B.C. lawyer another similar memo has surfaced titled “ Deposit for Civil Jury Trials Effective January 03, 2006.” It has a concluding note saying “Revised April 18, 2007 (the 2007 Memo). Probably there are three or more of them!
   This posting tries to explain why these secret memos are not law and do not entitle Sheriff’s to collect most of these fees

CIVIL JURY FEES – A CHARTER BREACH - INVALIDITY

1. Introduction

   Previous postings describe the astronomic filing fees that B.C. litigants must pay when they seek trial by a civil jury in the Supreme Court of British Columbia (SCBC). For example, a party to a civil action in B.C. who needs a 10 day trial with a civil jury must pay the government well over $6,000 in filing, hearing and jury fees.
   Similar fees in other jurisdictions are far more reasonable. Here are a few comparative examples:
• Washington State:    $480.00
• Oregon State:           $817.00
• Ontario:                    $619.00
• U.S. Fed Crt.:           $350.00
   This posting argues that the SCBC hearing and jury fees paid by litigants to the provincial government are either, constitutionally discriminatory or are of such a magnitude that that they are beyond the authority of the government to impose.

Civil Jury Trial Reforms

1. Introduction

   Civil jury admirers have written at length about the advantages of civil jury trials. Here is a small collection of many persuasive comments.
  Jurors empower citizen jurors who hold no office and have no professional status. Jurors are a part time institution of government. They have no ambitions of their own and are therefore worthy of trust. They are free of any direct personal interest in their verdicts. Litigants get the chance to choose a body of persons who bring average common sense to bear upon the facts in issue. The parties to the litigation have the right to select their own judges. Jury verdicts do not create precedents. Juries can decide hard cases without making bad law.
   It seems that only four of the nine Canadian common law provinces have active civil jury trial systems. They are Nova Scotia, Ontario, Saskatchewan and British Columbia (B.C.). Arguably, the main reason for the decline of civil jury trials across Canada arises from the failure of political and judicial hierarchies to modernize the process.
   Following is a discussion about these reforms. It relies mostly on B.C. rules and legislation. Many if not all these B.C. laws represent the situation in the other provinces.

GOVERNMENTS’ FEAR OF CIVIL JURY TRIALS

Juries, above al civil juries, help every citizen to share something
of the deliberations that go on in the judge’s mind
and it is these very deliberations
which best prepare the people
to be free.

       Alex De Tocqueville
       Democracy in America
       1835-1840

1. Introduction

  For centuries English and Canadian citizens could not sue their governments over wrongs done to them by governmental officials. Ancient theory dictated that Kings and Queens could do no wrong because they were the fountains of justice. Hence, the Monarchs’ servants or agents could do no wrong.
  Beginning around 1952-53 Canadian federal and provincial legislators finally recognized the absurdity of preserving this idea. Gradually, they enacted legislation giving people harmed by the actions of public servants the right to sue governments in a court of law. However, the legislation included an escape clause. It released governments from being tried by a civil jury.
  For example, federal legislation says that in civil proceedings against the federal government in a provincial court, the trial must be without a jury. Similar provincial statutes protect their provincial governments the same way.
  Since a jury is composed of the legislators’ own electorate why are the legislative branches of these governments afraid of having their executive branches being tried by a civil jury? Why do these governments seem to think that judges will be more sympathetic to them than will six to eight civil jurors?

Assessing Non-Pecuniary Damages - Civil Jury Reform

Bouck, John C. "Civil Jury Trials - Assessing Non-Pecuniary Damages - Civil Jury Reform." The Canadian Bar Review 81 (2002): 495-527.