Recently, we discussed potential major proposed changes to Ontario auto insurance recommended in a report from the Ministry of Finance. That report — known as the Marshall Report after its author, David Marshall — made some three dozen recommendations for how auto insurance in Ontario could be reformed to reduce insurance premiums.
In our article responding to the Marshall Report, we limited ourselves to criticizing Marshall’s recommendations, without offering alternative solutions. In this article, we discuss one such alternative solution that goes wholly unmentioned by Marshall: eliminating juries in civil lawsuits.
Juries introduce a series of inefficiencies to our justice system, which we’ll discuss in more detail below. Those inefficiencies mean trials take longer and cost more than they would otherwise. Eliminating juries from civil trials would lead to significant savings in litigation costs, both to the parties and to the courts, and these savings could put downward pressure on insurance premiums.
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The Role of Juries in Civil Lawsuits
Most people are at least somewhat familiar with what juries do thanks to films and television, but the specifics are not as well known.
In a lawsuit heard by a jury, the jury is the finder of fact. If the parties disagree about a fact, then the jury decides which party is right. For instance, in a personal-injury lawsuit concerning an auto accident, the parties might disagree about how seriously the plaintiff was injured in the accident. In that case, the jury would consider the evidence presented and reach a conclusion.
The jury’s role as fact-finder is different from the judge’s role in such cases. The judge’s role is to determine how the law applies in a case, both procedurally (e.g., is this or that evidence admissible?) and substantively (e.g., do the facts found by the jury support the plaintiff’s legal claim?).
What some people may not realize, however, is that juries are not necessary in a civil lawsuit. Rather, the parties can choose to let the judge decide disputes of both law and fact. In that event, they present evidence and arguments only to the judge.
What’s wrong with juries?
Understanding that judges can serve the same fact-finding function as juries in civil lawsuits, we can now consider why judges are the better alternative: Juries are a source of inefficiency and increased costs in Ontario courts. For example:
- Juries must be summoned, empaneled, and selected. Every year, some 180,000 Ontarians are called for jury duty from the jury roll established the previous year. Some of these individuals will then be selected to serve on a jury, and the lawyers in the case given the opportunity to challenge him or her.
- Juries must be instructed. Jurors, by and large, do not know the law when they are selected for a jury. The judge and lawyers in a case must spend time educating the jurors on what the law says and how the evidence fits into it.
- Juries may be fought over. Juries are just another procedural aspect of a lawsuit over which the lawyers may argue. For instance, if one party believes a case will be too complex for a jury, he or she may move to strike the jury. But the other party may believe that it is to his or her advantage to have the case heard by a jury, and so they will have to spend time arguing the question before the judge.
These inefficiencies and costs pose two problems in the context of auto-accident litigation. First, they increase costs for both plaintiffs and insurance companies. These increased costs must be offset by higher premiums. By eliminating jury trials and their attendant costs, we should see premiums fall, too.
Second, although insurance companies bear these increased costs, many nonetheless favour jury trials, because they can bear the costs more easily than individual plaintiffs. In other words, the higher costs associated with a jury are one-sided: they motivate plaintiffs to settle for less, more than they motivate insurance companies to settle for more.
Can we get rid of juries in civil lawsuits?
Juries are deeply rooted in English law and all its common-law descendants, having been guaranteed as early as Magna Carta in 1215. So, it may be fairly asked, can civil juries actually be eliminated in Ontario? We think so, for three primary reasons:
- There is no constitutional right to juries in civil litigation. Although the Canadian Charter of Rights and Freedoms protects the right to a jury in some criminal cases, this is not true of civil lawsuits.
- Already, few disputes are decided by jury. The overwhelming majority of civil disputes these days are settled out of court. And even among those that are resolved in court, only a minority involve juries. This means that, already, juries decide only a tiny fraction of civil lawsuits.
- Other jurisdictions prohibit civil jury trials. Several common-law jurisdictions have abolished civil jury trials, either in whole or in part. For instance, England itself no longer allows juries in personal-injury trials. Some parts of Australia have eliminated civil jury trials altogether.
No doubt, civil juries are an ancient and revered institution, but that does not mean that they still make sense in the modern world. Today, civil juries are rarely used, but when they are, they drive up costs for plaintiffs, courts, and the insurance system as a whole. If we are serious about reducing costs, and so reducing insurance premiums, it is time to seriously consider ending the practice of using juries in civil lawsuits in Ontario.
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Injured in an accident? Seek Legal Help Today
If you have been injured in an auto accident, truck accident, motorcycle accident, or other personal injury, such as a slip and fall, contact the experienced personal injury lawyers of Preszler Law Firm today. We have been fighting on behalf of injured clients for nearly 60 years. Whether your case goes in front of a civil jury or judge, we will make sure you have the best legal representation possible — and we don’t get paid unless you win.
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