Canadian Lawyer

"One questions whether this portion of the changes might be in response to this wider discussion that's been happening about whether civil juries are fair." Jan Marin, Gluckstein Personal Injury Lawyers What do your clients need? The means to move on. Guaranteed. ™ Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES cally or generally against similar plaintiffs. Since there "wasn't much traction being gained in the movement to eliminate juries more generally," Marin says, perhaps that piece of the changes in terms of the simplified rules having a no-jury option is a reflection of that concern. While there are a lot of ways lawyers are limited with the jury, she notes, the judge knows the laws in these areas — they know about the deductible, for example — so, with a judge-alone trial, there's "a certain expecta- tion they'll understand." "I can't say what happened behind closed doors, but that was something that was going on within the industry — it was a conver- sation that was happening," she says. "One questions whether this portion of the changes might be in response to this wider discussion that's been happening about whether civil juries are fair." Mandel says an issue with the change to the rules is that it assumes the lawyer can pre- dict in advance what case is worth $200,000 and what case is worth more than $200,000. "A real-world problem is that a vast num- ber of cases are worth more than $200,000 in front of a judge and less than $200,000 in front of a jury, because of these court-man- dated restrictions on the jury's understanding of the law," he says. Other than the changes to the simplified procedure, Mandel says, he doesn't see any other efforts being made to change this issue. To really remedy the situation, he says law- yers should simply be able to educate the jury, which essentially operates out of ignorance, to allay the unintended biases that work to suppress the compensation an accident vic- tim should otherwise be entitled to receive. But despite some lingering concerns, Marin still thinks the greater ability to get a judge-only trial will "make a big difference." "A judge is privy to everything that's going on, the judge can make determina- tions about the weight or not that should be placed upon particular evidence with expe- rience behind him or her." Marin also points out that, in Canada, unlike in the United States, "we don't know much about juries — you're going in fairly blind in terms of who these individuals are." Mandel says there's a firm in the U.S. called Morgan and Morgan whose entire ad campaign is based on "this is what the juries aren't allowed to know." It runs ads on what lawyers aren't allowed to inform the jury of at trial, in the hopes that it can educate people who may be potential future jurors. "It might be effective, but I'd be reluctant to do that because I wouldn't want to raise the ire of the judges in Ontario saying I'm doing indirectly what I can't do directly," Mandel says. "But that's how one firm dealt with it in the States." www.lawtimesnews.com 23

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