Recent trend towards provisionally striking juries "a light at the end of the tunnel"

As the pandemic continues to cause disruptions, courts turn to modified wait-and-see approach

Recent trend towards provisionally striking juries "a light at the end of the tunnel"

As the COVID-19 pandemic continues to cause massive disruptions to the court system, a trend towards provisionally striking juries is emerging as a means of balancing the right of the defendant with the needs of the plaintiff.

“What we’re seeing now is lawyers representing the injured party saying wait a second, I need a light at the end of the tunnel here,” says Dale Orlando, principal partner at McLeish Orlando LLP. These cases are being put on hold and because of COVID restrictions, the strong likelihood is cases will be tried by judge alone long before jury trials are reinstated.”

Civil jury cases that would normally be pushed to trial — and getting close to trial is a great opportunity to get a case settled, Orlando adds — have been sitting for the last 12-18 months. At first, lawyers were bringing motions to strike juries but “there was mixed success on that,” he says. The trend more recently has been “a modified wait-and-see approach” where judges grant the striking of a jury on a conditional basis. If your matter is adjourned to a sitting that’s proceeding by judge alone, then your case is going to proceed by judge alone. However if by the time your case is reached on the trial list jury trials are once again proceeding, then your case will be heard by judge and jury.

This strikes a balance between the substantive right of the defendant to a jury, and the right of the plaintiff to have access to justice and a timely resolution of their case. And for plaintiff side personal injury lawyers, the ability to get cases heard one way or the other provides some financial certainty for their clients, as the vast majority have significant loss of income and significant cost of care needs that aren’t met until the lawsuit is resolved. Although there’s an option to ask for an amount of advanced payment from the defence, which is credited towards the end result, some insurance companies refuse “even though they know they’ll be writing a seven-figure cheque in the end anyway,” Orlando says. Though he can’t say for sure what their motives are, it’s possible they’re trying to starve out the plaintiff.

“There’s a real need to have these cases move through the system, and we don’t want to be in a situation where a plaintiff has to accept an offer that’s unreasonable and doesn’t adequately compensate them for their needs just because they couldn’t hold on any longer,” he says.

One of the issues is if the case has already been listed for trial, under the Rules you’re not allowed to bring a motion without leave of the court. In a recent motor vehicle collision case, McKee v. Marroquin, the judge outlined a three-step test to determine whether leave should be granted under Rule 48.04(1). As summarized in the firm’s blog post on the decision, the court must determine whether the change to the circumstances is substantial or unexpected; determine whether it would be manifestly unjust if leave was refused, or if it’s necessary in the interests of justice to grant leave; and should exercise its discretion whether to grant leave having regard to all of the circumstances.

“Recent case law seems to recognize that COVID was certainly unexpected and judges have been exercising their discretion to grant leave in these circumstances to allow people to bring these motions and have the motion heard on merits,” says Orlando, adding in McKee the judge granted leave and referenced other recent decisions allowing motions to strike jury notices.

It’s be no means a silver bullet, as cases may still not be reached or when they are trials with judges might not be proceeding either — who knows what the future holds, Orlando notes — but at least the provisional striking of the jury “gives you that extra level of certainty that the case may proceed and the jury won't be the determining factor in whether it proceeds or not.”

“Sometimes practicality and access to justice have to take precedence,” Orlando says.

This article was produced in partnership with McLeish Orlando LLP.

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