Florida Man Completes Personal Injury Jury Trial in 5 Days

Lawyers Daily article written by Brenda Hollingsworth

I am an American CPD junkie. I read their books. I watch their videos. I am currently watching “Obtaining Large Verdicts in Disc Injury Cases” by Keith Mitnik of Trial Guides.  At the outset Mitnik mentions how he and his colleague ran two back injury cases in Orlando, Florida back-to-back.  They picked the jury for the first one on a Monday, got the $1 million verdict on a Friday, and then did it all again the following Monday to Friday.  What?! Each of those trials would be 4 weeks in Ontario.  Why can’t we run our trials like that in Ontario?

The state of Ontario’s backlog for motions, pretrials and trials in Ontario is appalling.  It was appalling before the pandemic and it’s worse now.  We are scheduling jury trials in late 2023.  Imagine the impact on the waitlist if the default for personal injury trials was 5 sitting days instead of 20.

We are smart, well-trained lawyers in a developed country with (somewhat) modern facilities and a sophisticated judiciary.  What is holding us back from running speedy trials like those in Florida? The answer seems to come down to our litigation culture where we simply accept that lawsuits, including trials, just take a long time. No one is going to tell me that the state that gives us the “Florida Man” headlines has a higher inherent competence than we have.  What they do have is a highly practical and proportionate approach to trying these cases that Ontario should embrace.

I was fortunate to speak to David Neiser, a board-certified litigation attorney in Clearwater, Florida with more than 30 years’ experience.  In Neiser’s jurisdiction, garden variety personal injury jury trials are set for one week unless the parties convince the court that they have a complex case requiring a special sitting.  This is rare.  Most of Neiser’s trial are 3 or 4 days.  He is working on tightening them up to 2 to 3 days. The first day is jury voir dire and possibly opening statements, which are typically 15 to 20 minutes each.  The plaintiff will spend an hour to 90 minutes on the stand, including cross-examination. Expert witnesses are about the same, with only about 5 minutes dedicated to qualifications. Neiser and defence counsel might examine the family physician for 30 to 40 minutes.  Before and after witnesses are about 15 minutes each, including cross-examination.  Closing arguments are typically 45 minutes, with a 15-minute rebuttal. Neiser explains that with only a week permitted to present a case, he is focussed on presenting only the essentials of his case.

Neiser also emphasises that the judges are adamant about the efficiency of their trials.  They will pressure the parties to “move things along” throughout the trial.  If a case does not complete in the 5 days allotted there is a strong chance it will be a mistrial.  Objections are discouraged.  Mid-trial motions are frowned upon.  The parties are expected to address all potential motions before the trial date.  The judges typically limit their jury charges to 30 minutes.  The trial days run from 9 to 5 with a 90-minute lunch.  It all gets done.

Ontario’s civil justice infrastructure has made some revolutionary steps forward in the past 20 months thanks to the Covid-nudge. Can we use this momentum to make other significant changes to increase our efficiency?

Over the past decade, the idea of proportionality has been celebrated with the addition of R. 1.04(1.1) and the increased monetary limits of the simplified procedure in the Rules of Civil Procedure.  Likewise, the Supreme Court of Canada’s decision in Hryniak v. Mauldin underlines proportionality as a component of access to affordable justice.  But the reality is that little has changed in most Ontario litigation practices. Like many Ontario lawyers, I have been in Trial Management Court when we suggest a trial length, usually 3 or 4 weeks. The presiding judge, looking to be helpful, will suggest that a fifth week be added to be on the “safe side”.  We are all part of the problem.

The truth is: if run-of-the-mill civil jury trials were only allowed 5 days, they would be done in 5 days.

Would this cultural change toward tighter trial times result in a less just civil justice system?  The simple answer is no. No one is more surprised than my own clients when I tell them that a trial of their slip and fall broken leg case would occupy 4 weeks of court time and all the resultant public resources.  The Ontario public does not have an expectation that their injury cases will be determined with the full regalia of a first-degree murder trial; only the lawyers and judges do.