Dermot P. Nolan is a Hamilton lawyer and a former president of the Ontario Trial Lawyers Association.
“Do you swear that the evidence you give shall be the truth, the whole truth and nothing but the truth?”
That is the standard of truth that our courts expect of every witness.
But it is not the standard by which the real story is presented to every jury.
In fact, the whole truth is often distorted and concealed from civil juries by an elaborate and systematic construct that deliberately keeps them in the dark about what is really going on.
In almost every jury case involving a claim for damages caused by someone’s negligence, there is an invisible hand pulling the strings, which the jury is not permitted to know about. That hand belongs to a hidden insurance company.
In such cases, jurors are never allowed to know that the person they hold responsible for a victim’s injuries will not have to pay the victim a nickel. That is because an insurance company will pay whatever damages the jury awards.
The victim is not allowed to sue the insurer directly. She has to sue the person who caused the harm.
Nevertheless, the lawsuit is really against the insurer. The insurer decides whether to settle or force the case to trial. The insurer hires and pays the defence lawyer. The insurer hires and pays doctors to examine the victim and then come to court to testify against her. And the insurer pays the final judgment.
The person who is sued is merely a pawn in a backstage chess game orchestrated entirely by his insurer. Even if he thinks the victim should be paid, even if he doesn’t like his insurer’s tactics – and even though he paid all the insurance premiums – he has no say. The insurer calls all the shots and the insured has to go along or risk not being covered.
Jurors are not allowed to know any of this. The charade that is played out in front of them pretends to be about a victim trying to get money out of the person she is suing. If anyone hints or tells the jury that the person being sued is protected by insurance, a mistrial can result. It is a cardinal sin to mention insurance – a sure way to blow up a trial.
This false pageant perverts the process. Jurors could find themselves wondering how callous a victim must be to sue her own sister whose broken stairs she fell down – or how cruel it is for a grieving family who lost a daughter in a car crash to sue another grieving family whose daughter caused the crash but also died.
The truth is that there is nothing callous or cruel in either scenario. These victims wouldn’t be persecuting the sister or the other bereaved family; they would simply be seeking fair compensation from the insurers in the only way the system permits.
Why not tell the jurors the whole truth? Why not let them in on the dirty little secret of who is calling the tune as well as paying the piper?
There can be only one explanation. The system doesn’t think jurors can handle the truth. It assumes that otherwise fair-minded jurors will lose their heads if they know an insurer will be paying and, therefore, think the sky’s the limit for what they can award because the insurer can afford it.
To prevent this, the system deceives them by implying that whatever they award will come out of the personal defendant’s pocket. That illusion can create false sympathy for the wrongdoer, a lower award for the victim and a saving for the insurer.
This smokescreen insults our jurors. It plays them and unnecessarily shields insurance companies at the expense of victims.
And there’s more. In car-crash cases, jurors have even more layers of wool pulled over their eyes to obscure the truth.
For example, they are not allowed to know that the amount that they decide is fair compensation for a victim’s pain and suffering will be automatically cut by about $38,000 because of the Insurance Act.
As a result, jurors who might have thought they were doing the right thing by awarding $40,000 to a victim can’t know that she will get a paltry $2,000 after a hidden “deductible” they weren’t told about is automatically slashed from the award.
That is a travesty and a shameful manipulation of our trial system, which is intended to dispense justice, not favours for corporate interests that have nothing to do with justice.
Jurors are trusted to be impartial and fair. Into their hands are thrust life-changing issues of enormous consequence. They are called on to make decisions that, depending on how they act, can right wrongs or make them worse, restore lives or destroy them, dispense justice or pervert it.
It is dead wrong to ask them to do their duty in the dark.
It is time to stop this pretense and treat jurors as adults.
In the meantime, if you find yourself on a jury, remember that the person being sued may be just a helpless marionette whose strings are being pulled by a hidden insurance company. And even though the witnesses you hear may be trying to tell the whole truth, there may also be some pretty important truths you are not allowed to know. But you should know. You can handle the truth.