What the Jury Isn't Told

If you are going to be a juror on a trial, read below to find out exactly what you need to know.

The Facts

Often times, your personal injury lawyer can settle your case outside of court. However, if the case does make it to trial, most personal injury car accident trials in Ontario proceed with a jury. While hundreds of potential jurors can receive notice in the mail requesting them to show up at court for jury duty, only a handful are selected at random (by ballots) to be jurors. Lawyers of both the plaintiff and defendant can challenge a juror for whatever reason they choose, up to the maximum of 4 jurors.

In the case of a civil trial involving car accidents and personal injury in Ontario, 6 jurors are selected to participate in the court proceedings. Lawyers from both sides are only given the following information about the jury on their trials: name, address & occupation. No other information is given to lawyers, defendants or plaintiffs. A juror can be anyone you see on the street, in line at a coffee shop or bus terminal. This is done so that the jury can remain unbiased and make fair decisions based on their best judgement.

However, the jury is not given all of the information that they rightfully deserve.

What The Jury Isn't Told

Jurors hear majority of a civil trial including the opening and closing statements, as well as the "charge" by the presiding judge. The purpose of the charge is for the judge to instruct the jury on applicable laws related to the civil case. Yet, there are important aspects to the trial that the jury is completely unaware of.

Monetary Deductible

As of January 1st, 2017 all general damages awarded (for pain and suffering) under the value of $124,616.21 are subjected to a deductible of $37,385.17. This means that injury victims awarded $50,000 only end up receiving $12,614.83 and victims awarded $100,000 end up with $62,614.83. That is a massive deductible that juries are unable to take into consideration when awarding victims with settlements. Moreover, the deductible amount increases each year due to inflation (referred to as indexing). The original $30,000 deductible from 2003 has increased by 25% over the course of 14 years.

Threshold

In addition to the existence of the monetary deductible, a verbal threshold also exists. Essentially, no damages for pain and suffering can be recovered by the plaintiff if their injuries are determined to not be "permanent and serious". At the end of court proceedings, the defense counsel may present a threshold motion to the judge and this motion is NOT heard by the jury. The determinations made based on this motion are solely at the hand of the judge and the jury no longer has any say in the decisions. This means even if a jury awards an injury victim with a large settlement, they may end up with nothing based on the decisions after a threshold motion.

Defendant's Lawyer

Another aspect that juries are not usually aware of is the defendant's lawyer, and that they are paid for by the defendant's insurance company. The defendants themselves do not pay any outrageous fees to retain counsel or drive themselves into debt; the insurance company provides the appropriate counsel to them.

Money Awarded Against At Fault Driver

Similar to the defendant's lawyers; any damages awarded to a victim / plaintiff are not taken directly from the defendant. The at-fault driver's insurance company pays for any monies awarded to the plaintiff. Most drivers have insurance coverage of up to $1,000,000 in Ontario and so even large settlements of $500,000 are covered by insurance companies.

Our Experience At Trials

Sidhu v State Farm

The courts and insurance companies have made it increasingly difficult for victims and those entitled to benefits to actually RECEIVE those benefits. In this case, between the plaintiff Mrs. Sidhu and defendant State Farm Insurance, a few different situations occurred. Frank Burns who was counsel for the plaintiff mentioned to the jury CPP benefits that Mrs. Sidhu was entitled to, as well as misconduct by State Farm. Interest on unpaid benefits used to be 2%, compounded monthly, however since 2010 has decreased to 1%. This means those who are entitled to benefits can end up receiving even less. The defendant attempted to appeal the case and have the plaintiff receive only 1% interest, but the courts determined that they'd be paid under the previous schedule (as that is when the accident took place). Changes made in June 2012 state that interest on benefits is reduced from 5% to bank rate which hurts victims even more.

Insurance companies withholding benefits is an unfortunate issue that many accident victims are faced with and it takes a lawyer to retrieve the damages, plus interest owed on top. Mr. Burns was successful in recovering years of unpaid insurance benefits for the plaintiff, in the amount of $700,000+. The case was argued all the way until the court of appeal, where they won. The purpose of interest on top of insurance payments is to incentivize insurance companies to pay up the amount they are supposed to. However, due to a lack of penalties and repercussions, insurance companies who decide to stop making payments (or never begin in the first place) are often untouched.

What Other Lawyers Have To Say

Jack Fireman

Jack Fireman acted as counsel for insurance companies for 30 years but switched over to the victims side, 16 years ago. With thorough experience on both sides; he presents points that are nothing but valid. One of the biggest issues he points out, is the rules forbidding lawyers from informing juries about the existence on insurance. No on ever mentions insurance during a personal injury lawsuit; not the clients, attorneys or judges. Even though the lawyer representing the defendant is actually representing and paid for by the insurance company; no where is the insurance company's name to be seen. This creates the impression that drivers being sued are personally liable for all damages and could themselves be paying out of pocket. In most situations, the person being sued is insured and the insurance company would be covering all costs (up to their policy limits).

Fireman goes on to discuss other aspects that juries are just not informed about, including the amount of insurance coverage a defendant has, the mandatory deductible that will be subtracted from damages received for pain and suffering, and any court decisions that are held after the trial itself (threshold motions, etc).