Winning Strategies in the Civil Jury Process
| Author | Roger G. Oatley and Brennan Kahler |
| Pages | 153-177 |
Winning
Strategies
in the
Civil
Jury
Process
Roger
C.
Oatley
and
Brennan
Kahlef
[Editors'
note: This
article
is the
edited text
of a
paper
presented
to
the
Canadian
Institute's
conference
on
Civil
Procedure
and
Evi-
dence,
held
in
April
2003
in
Toronto.]
A
jury
provides litigants
in a
civil action with access
to
justice deter-
mined
by a
collection
of
peers. This right
is a
basic tenet
of our
modern
system
of
civil
justice.
It is a
substantial statutory
right,
which
our
legis-
lature
and
courts ardently protect.
It is a
right that
is
subject
to
very
few
exceptions.
This article discusses
the
benefits
the
civil
jury
provides.
It
also
examines
the
civil
jury's
inherent
limitations.
It
reviews
the
proce-
dure,
and
suggests practical strategies,
for
requiring
and
striking
out a
jury.
It
discusses
the
role
of
focus
groups
in
promoting
effective
jury
selection,
and it
describes
and
explains persuasive
jury
communication
and
presentation techniques. This article concludes with
a
discussion
of
recent cases considering current
civil
jury
issues, including judicially
imposed limits
on
counsel's freedom
to
address
the
jury
and the
jury's
new and
improved ability
to
award punitive damages.
*
Roger
G.
Oatley
and
Brennan
Kahler,
Oatley,
Vigmond,
Barrie.
^53
154
ETHOS, PATHOS,
AND
Locos
The
Decision
to Use
a
Jury
in a
Civil
Action
As
a
general rule,
we try our
cases before juries. Properly educated
and
sufficiently
motivated
to
help your client,
civil
juries
often
award more
generous damages than will
a
judge. That said,
a
jury
is not
always
appropriate,
for
both legal
and
practical reasons. This section describes
the
circumstances where counsel should seek,
or try to
avoid,
a
jury
trial.
It
also discusses some
of the
differences confronting counsel
who are
presenting
a
claim
to a
judge rather than
a
jury.
When
is a
jury
appropriate
for
resolving
disputes?
A
jury
is
appropriate
for
resolving disputes
in
most cases.
But
there
are
exceptions. Juries should
be
avoided
in the
following circumstances:
When
the
plaintiff
is not
likeable.
When liability
is
very
difficult.
When
the
theory
of
damages
or
legal foundation
for
your case
is
dif-
ficult
to
understand.
When
you do not
possess
the
skill
or
personality
to
advocate
effective-
ly
before
a
jury.
If
your plaintiff
is not
likeable,
a
jury
might
be the
worst possible
trier
of
fact.
Juries
do not
like people
who
lie. They
do not
like people
who
exaggerate their injuries
in
personal injury cases. They
do not
like
people
who
abuse their spouses
or
their children
or
shirk their obliga-
tions.
And
they have little sympathy
for
people
who flout the
law. Judges
are
influenced
by
these
factors too,
but
they
are
more
inclined
to be
tol-
erant because they have heard
it all
before.
If
liability
is
very
difficult,
think long
and
hard before risking
a
trial
with
a
jury.
Juries, when properly instructed, will
do
their duty
and
throw
a
case out. Judges,
on the
other
hand, will
often
bend
over back-
wards
to
give some relief
to a
deserving plaintiff even
in the
most
diffi-
cult
of
cases.
If
the
legal foundation
for
your case
or
your theory
of
damages
is
extremely
hard
to
understand,
you may
want
to
steer
away from
a
jury.
The
reasons
are
obvious.
Finally,
if you
don't know
how to
present
a
case
to a
jury
or if you
don't have
the
personality
to be
effective,
don't
run the
risk. Either retain
counsel
or
don't serve
a
jury
notice.
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