How Not to Lose Your Jury

Introduction

“A huge portion of what [counsel] said after ‘Good morning’ needed remedial attention” – Justice Quinn[1]

No one wants to be the lawyer described in this quote. More than that, no one wants to be the lawyer who delivers an opening statement that causes a mistrial. Not only will this result in unhappy clients and wasted expenses, it results in a reported decision that will immortalize criticism of a lawyer’s performance at trial.

Delivering an effective opening statement can be a comprehensive topic. There is a lot of guidance out there from lawyers much more experienced than myself on how to do it right. For instance, Roger Oatley’s Addressing the Jury[2] devotes some 400 pages on how to present a case to a jury in a persuasive way, including tips and tricks on crafting an excellent opening statement.

For the limited purposes of this paper, however, I will focus on the more egregious mistakes that can be made by counsel in an opening statement and how to avoid a mistrial or losing the jury.

In order to do so, I will first give a brief overview of the general principles that govern opening addresses. Second, I will provide some real-life examples of where an opening statement went wrong. Finally, I will provide some key take-away lessons that you can keep in mind when crafting your next opening.

General Principles

There are a handful of long-standing, key principles that govern opening addresses to a jury.

The overarching object of an opening is to give the trier of fact a general notion of what will be given in evidence. In an opening, counsel should state:

1. The issues between the parties that have to be determined;

2. The facts of the case; and

3. The substance of the evidence to be adduced and its effect on proving their case.[3]

In essence, the opening statement should assist the trier of fact in understanding the evidence as it unfolds at trial and the submissions of counsel at the end of trial.

While not exhaustive, the following are examples of what an opening statement should not include:

1. Argument; 

An opening statement is not counsel’s opportunity to argue the case. The rule prohibiting argument in opening statements relates directly to the purpose of the opening statement. The opening statement is designed to ease the burden of the jury by introducing evidence in a coherent framework. When counsel crosses the line from presenting the jury with a factual framework, to telling the jury what conclusions to draw, the opening enters the realm of argument.[4]

There is, however, a distinction between overt argument and persuasive narrative. While counsel cannot argue the case in opening remarks, persuasion can be achieved by arranging the evidence in a compelling manner and using certain language. For this reason, the distinction between argument and the persuasive presentation of proper submissions can sometimes become blurry.

The distinction was articulated by Justice Furguson in the 2001 decision of Hall v Schmidt – Persuasive narrative is marshaling the evidence “in such a way that the conclusion to be drawn is obvious so that to state the issue is to answer it.” Put another way, “persuasion is achieved by arranging the evidence in a compelling manner and by the choice of language.”[5]

2. Personal opinions on the facts or the law;

It is not appropriate for counsel in an opening – or at any stage in trial – to offer personal opinion to the trier of fact.[6]

3. Inflammatory comments that appeal to the emotions of the jurors;

Comments made to a jury which impede the objective consideration of the evidence or that encourage assessment based on emotion are objectionable. These comments appeal to jurors’ emotions and invited prohibited reasoning.[7]

4. Inadmissible or irrelevant evidence;

Contested evidence or evidence that would only be admissible after a ruling from a trial judge should not be included in an opening. If counsel wishes to include this evidence in her/his opening, then a ruling as to its admissibility should be requested prior to the commencement of trial.[8]

5. Comments that attempt to explain the importance of certain evidence or how evidence should be weighed by the jury; and

Counsel should not “urge the jury to draw inferences from facts or to reach certain conclusions.[9]

6. Commenting on credibility;

Counsel should not comment on the credibility of witnesses in an opening statement, except in the rare instance where credibility is the primary issue at trial. In that circumstance, counsel should alert the jury that credibility will be at issue without presenting argument on that point.[10]

7. Commenting on the law; and

Counsel should not discuss the law in an opening statement. However, it is also recognized that it can be difficult to frame the evidence without some reference to the law. For that reason, a short explanation of the legal significance of the evidence will usually be allowed.[11] If the explanation becomes “intricate, lengthy and controversial, however, an objection will usually be sustained.”[12]

8. Mentioning insurance coverage. 

It is a long-standing principle that mentioning that the defendant carries insurance will almost certainly result in discharging the jury.[13]

Examples of Opening Statements Gone Wrong

The principles of a good opening statement are fairly straightforward. However, delivering an opening statement can feel difficult in practice. For instance, where is the line between argument and persuasive narrative? The case law attempts to distinguish but how do you know when you have gone too far? How can the client’s story be told in a compelling way without inciting emotional responses and prohibited reasoning?

The best way to get a sense of how an opening can go too far is to look at real-life examples. I have selected some example cases that showcase opening statements that crossed the line and resulted in a mistrial or the loss of the jury.

1. Burke v Behan, 2004 CarswellOnt 5535

The 2004 case of Burke v Behan provides us with an example of where plaintiff’s counsel made multiple transgressions in his opening.

This was a fatality case. A couple was killed when involved in a two-vehicle accident with the defendant. The defendant was charged and pleaded guilty to impaired driving. Despite this, liability was hotly contested. Crucial to the matter of liability was the orientation of the two vehicles at the moment of the collision: were they within the lane travelled by the deceased couple or were they within the lane occupied by the defendant?

In his opening address, plaintiffs’ counsel made numerous statements that were ultimately held to be inappropriate for an opening address. The impugned statements included the following:

1. …that damages “were the only means we have of expressing the sympathy and the humanity of our society”;

2. “I think it’s fair to say from my perspective and I believe society, that the companionship between a parent and a child is fundamental. It’s fundamental to our society”;

3. “Linda was an only child. Linda’s mother was 75 years old at the time of the accident. If any of you have grandparents or senior parents, there’s also a sense of guidance at that phase of an individual’s life, to help guide them through the stresses that modern society is now creating for all of us”;

4. “Common sense would suggest that it was more likely than not left by the tire closest to the point of impact where the transfer of the forces occurred.”

As a result of these transgressions, defence counsel brought a motion for a mistrial.

Justice Quinn held that the above statements (1) referenced incorrect legal principles, (2) injected the personal viewpoint of counsel, (3) invited the jurors to account for their own family situations when considering the case at bar, and (4) included argument with respect to a crucial issue in the case, i.e. liability. Justice Quinn held that these statements had “no place in an opening statement.”

In addition to these comments, Justice Quinn also noted that plaintiffs’ counsel had “opened a Pandora’s box by adverting to the criminal side of the case.” Plaintiffs’ counsel told the jurors that the opinion of the OPP collision reconstructionist had changed sometime after the criminal proceedings and that his changed opinion was as a result of the difference in the burden of proof governing civil matters. Plaintiffs’ counsel went on to inform the jury that the reconstructionist now held the opinion that the defendant caused the accident. Justice Quinn held that this ceded the ultimate question for the trier of fact to the expert.

Justice Quinn declared a mistrial. In doing so, he held that an instruction from the bench “no matter how blunt or thorough” would not be an appropriate cure for the opening:

I did not regard an instruction from the bench, no matter how blunt or thorough it might be, as an appropriate cure for this opening address for two principal reasons: (1) at some point, where the shortcomings in an opening address are numerous, correcting instructions, apart from being unwieldy, are simply ineffective (a huge portion of what [plaintiffs’ counsel] said following “Good morning” needed remedial attention); and, (2) the number and extent of the correcting instructions needed here undoubtedly would affect the credibility of [plaintiffs’ counsel] in the eyes of the jury, thereby creating a real risk that the plaintiffs would not receive a fair trial.[14]

2. Morrison v Grieg, 2006 CarswellOnt 6299 (SCJ)

This decision involves an improper opening address by defence counsel. In this 2006 decision, Justice Glass discharged the jury following defence counsel’s opening address.

This case involved multiple young men who were in a collision following a night of drinking. Two of the young men in the car were seriously injured and commenced a lawsuit against the driver. There was evidence that the Defendant driver was quite intoxicated at the time of the collision.

While reviewing liability evidence in his opening statement, defence counsel made numerous statements that amounted to argument and invited the jury to analyze the evidence to be presented and to come to a particular conclusion. These statements included the following:

1. He expressed an opinion that the plaintiffs “should not have been surprised” that the defendant had been drinking that night and that the collision “should have been clear” to the injured plaintiffs;

2. He invited the jury to consider why the injured plaintiffs got into the vehicle when they ought to have known that the defendant had been drinking;

3. He told jurors that the only occupant of the vehicle who was not ejected was wearing a seatbelt and invited the jurors to consider whether the injured plaintiffs would be as injured as they were if they had worn a seatbelt as well;

4. He asked the jurors to consider whether the injured plaintiffs would even use the future care being advanced by the them in their respective claims; and

5. He argued that the plaintiffs should not be compensated for losses that were their own fault.

Justice Glass concluded that these statements went beyond just a review of the evidence and asked the jurors to begin analyzing evidence that was not yet before the court. They would have been properly included in a closing address – not an opening.

Justice Glass held that these transgressions could not be corrected with a jury instruction. He discharged the jury and the trial continued judge alone.

3. Braks v Dundeal Canada (GP) Inc., 2022 ONSC 4015

The 2022 case of Braks v Dundeal Canada (GP) Inc. provides us with a more recent example of an offensive opening statement. In her opening, defence counsel made multiple transgressions including referring to facts not in evidence, mischaracterizing the law and referring to hearsay statements.

The motion to discharge the jury was brought following closing statements but in his decision to discharge the jury, Justice Ramsay focused heavily on what defence counsel said in her opening statement and how it affected the fairness of the trial that followed.

It was a slip and fall case where liability was a significant issue. In her opening address, defence counsel stated: “Regardless of whether or not the duty of care towards the patron was fulfilled, you will have to decide on what, if any, injuries and damages Ms. Braks sustained. The Plaintiff’s credibility is crucial in this case” (emphasis added).

Defence counsel then referenced an alleged oral statement made by the Plaintiff. This statement had been written down in an incident report by one of the Defendant’s agent shortly after the fall. Counsel for the Defendant referenced the incident report in her opening statement and said:

“Ms. Braks heated up her lunch and took the elevator to the second floor, an area where people gathered for lunch, and when she stepped out of the elevator, she turned her ankle and fell. Ms. Braks noted that the floor was wet. Shortly after the fall, Dundeal filled out an incident report. You will hear evidence that it describes the incident in Ms. Braks’ words. She stated that the floor was greasy to the touch” (emphasis added).

The Defendant’s theory on liability was that the Plaintiff had simply twisted her ankle and that perhaps, she had slipped on grease leaking from her own heated lunch.

Counsel for the Plaintiff argued that the remarks of defence counsel referenced hearsay – an oral statement attributable to the Plaintiff made out of court. To add to this transgression, defence counsel did not put this statement to the Plaintiff during cross-examination, thereby breaching the rule in Browne v Dunn.

Justice Ramsay held that the unfairness to the Plaintiff was “manifest” and that the rule in Browne v Dunn is not merely a procedural rule but a rule of trial fairness. It requires that if counsel is going to challenge the creditability of a witness by calling contradictory evidence, the witness must be given the chance to address that evidence.

Justice Ramsay noted that this impugned out-of-court statement “featured prominently in the opening address and was quoted from liberally.” He held that is was “well-established that the opening address should not refer to any matter that may require proof” and that the Defendant’s opening address “went beyond the bounds of an opening statement by mentioning matters, which ultimately did not become evidence before the jury.”

Justice Ramsay held that “while a witnesses’ credibility ought not to be dealt with in an opening address and a party should eschew arguments, both occurred in this case.” He took particular issue with counsel for the Defendant stating that the Plaintiff’s credibility was crucial in the case.

Justice Ramsay held that defence counsel made numerous “serious offending statements” in both her opening and closing statements. He held that the jury was “misled on the evidence” and that “the misdirection started with the opening, continued throughout the trial and made its way into the closing.”

As a result, Justice Ramsay held that there were no instructions adequate enough to cure the prejudice to the plaintiff and discharged the jury.

Take-Away’s

The opening statement is one of the most important components of any trial. It is your first opportunity to present the case to the jury and to shape how the jury views the evidence that will be presented at trial. However, there are boundaries and you must work within them.

In his book, Addressing the Jury[15], Roger Oatley recommended the following three rules to avoid transgressions in your opening: (1) let the facts speak for themselves; (2) do not express personal opinions about the facts or issues in the case; and (3) do not tell the jury what conclusions to draw on any issue.[16]

Further, it is imperative to be well-versed on the case law in this area, in order to understand what you can and cannot say in an opening. Justice Ferguson provided guidance on what can be included in an opening in Hall v Schmidt.[17] The following elements are permissible and proper in an opening statement:

1. Persuasive narrative;
2. Mentioning a point of law;
3. Describing the anticipated evidence;
4. Explaining how the anticipated evidence will relate to an issue;
5. Anticipating what questions or evidence the defence will put forward; and
6. Posing questions the jury could consider in deciding the issues.[18]

If in doubt about the appropriateness of your opening, always have a few colleagues review it for compliance with the law. This is where membership in an organization such as OTLA is so valuable. The members of OTLA include numerous veteran, trial lawyers. Don’t be afraid to lean on their experience.

If you avoid the pitfalls in this paper, you can feel rest assured that you will not be the object of the trial judge’s witty commentary and keep your jury.

[1] Burke v Behan, 2004 CarswellOnt 5535 (SCJ) [“Burke”].

[2] Roger Oatley, Addressing the Jury: Achieving Fair Verdicts in Personal Injury Cases, 2^nd ed (Aurora: Canada Law Book, 2006) [“Oatley, Addressing the Jury”].

[3] Brochu v Pond, 2002 CarswellOnt 4334 (CA) [“Brochu”].

[4] Oatley, Addressing the Jury at p 109.

[5] Hall v Schmidt, 2001 CarswellOnt 3899 (SCJ) [“Hall”] at para 51.

[6] Supra note 2 at para 1.

[7] Ibid at para 21.

[8] Supra note 3 at para 51.

[9] Supra note 1 at para 7.

[10] S. Lubet, Modern Trial Advocacy: Canada, 2^nd ed (Notre Dame: National Institute for Trial Advocacy, 2000) at p 378.

[11] Ibid.

[12] Ibid at p 342.

[13] Hellenius v Lees, 1970 CarswellOnt 825 at para 30.

[14] Burke at para 27.

[15] Supra note 2.

[16] Ibid at p 111.

[17] Supra note 5.

[18] Supra note 2 at p 110; Supra note 5.