This Holiday break, my family didn’t go away on a nice vacation. We stayed in town. Our offices were open, and I worked. The cities I visited (Windsor, London, Leamington, Toronto, Peterborough) were all very quiet. It seemed like everyone was away somewhere else. The busiest place I saw was Masonville Mall and the Cineplex at Masonville in London, ON. Both were jam packed at really odd hours which I found rather strange; but that’s a topic for a different day.
A few hot shot Bay Street type lawyers I know recommended that I listen to the Pod Cast “Serial“. They knew I did considerable driving to meet with clients and listening to the Serial Podcast would be a great way to make the time pass. I downloaded Season #1 of Serial and binge listened. What a fascinating (but troubling) series of events. If you haven’t yet listened to it, I highly recommend you get in to it. The production quality and research that went in to the Podcast is nothing short of exceptional. The producers are well deserving of all of the accolades they have received. They ought to start practicing law!
Having got hooked on Serial, I proceeded to get hooked on the recent documentary “Making a Murderer” on Netflix. The documentary, filmed over 10 years or so tells the story of Steven Avery and his nephew Bobby Dassey, who were accused and later convicted of murder along with other charges.
The documentary pokes large holes in the case of the prosecution and advances the theory that the police may have framed Mr. Avery and Mr. Dassey in order to secure the conviction.
Watching the documentary made me incredibly mad. The lens of the documentary makes it seem like Mr. Avery and Mr. Dassey’s trials, and all of the events leading to trial were unfair. It brings the entire justice system in to disrepute when the Court system appears to be tilted against weak, vulnerable parties in such a way that you can’t have a fair trial or due process. That lack of appearance of a proper due process is what got me so mad.
I was asked by a friend whether or not I saw any similarities or stark differences in the trial process of Making A Murderer along with a personal injury trial in Ontario. Here is a quick list below:
Difference #1: Criminal Trial vs. Civil Trial: Criminal Trials have a higher burden of proof than do civil trials. In Canada; the Criminal standard to convict is “Beyond a Reasonable Doubt” while the Civil Standard is “On a Balance of Probabilities“. In terms of number figures, think of Beyond A Reasonable Doubt as close to 100% as you can get; while a Balance of Probabilities is just 50% plus 1. That’s a LOT of wiggle room for a Plaintiff in a civil case, compared to the extremely HIGH standard the Crown/Prosecution has to meet in a criminal trial.
Difference #2: In a Criminal Case, somebody’s LIFE, Liberties and Security are on the line. There are places in the United States that still use the death penalty right? Either way, a Life Sentence without parole is a LONG LONG time in prison. In a car accident case, a person’s quality of life is impaired, but not their civil liberties or freedoms like in a criminal case. The main thing up for grabs in a car accident or personal injury case is compensation in the for of money or benefits. Money and benefits take a second seat to life and liberty.
Similarity #1: The inherent imbalance in power between the State vs. the Accused is akin to the imbalance between a large, deep pocketed insurance company and an accident victim. Both the State and the Insurer have access to a never ending supply of resources, manpower and money. Both the accused and the accident victim are the opposite. It’s a David vs. Goliath battle which is very similar in both cases. Certainly, the wealthier the accused in a criminal trial, the more money they can throw towards their defence. The same applies in a personal injury case. But, it’s often the personal injury lawyer who is footing the bill for the case so the lawyer will want to make sure that s/he is investing their dollars on a winner and not a case where recovery is unlikely.
Similarity #2: The trials for serious cases are LONG. Because trials are LONG, it can be difficult for lawyers to convey complicated evidence to jurors and to the judge to keep them engaged in a long, drawn out story line. Do you really think that jurors in either a civil or a criminal case are able to stay focused after hearing 3 straight days of dry expert evidence which they may, or may not understand? A jury trial is not a dialogue between juror and lawyer. The lawyer conveys the case to the jury. The jury then gets to deliberate. There may be opportunities to clarity points which weren’t clear, BUT, the Courtroom is NOT an open classroom. There is also a human factor to jury trials which has to account for a juror’s pre-conceived notions of guilt, innocence and their attention span (or lack thereof). Keeping a jury engaged and on your side is a similar challenged faced by personal injury lawyers and criminal lawyers a like. Humanizing the story of the accident victim or the accused is very important to both personal injury lawyer and criminal defence lawyer. The more likeable your client, the greater the chance the jury will believe your theory of the case.
Similarity #3: Cases are built upon evidence and the credibility of witnesses. Without good evidence, you won’t have a good case. Without credible parties or witnesses you won’t have a good case. It’s not enough for an accused or accident victim to get up on the stand and provide self serving testimony to their case. That testimony becomes more powerful if it’s corroborated by independent sources or other evidence. That evidence is more credible if it comes from a neutral third party who doesn’t have any stake in the outcome of the case one way or another. Evidence matters. Credibility of witnesses and their testimony matters. Unfortunately, it’s NOT uncommon for people to lie on the stand; or provide evidence which omits pertinent details of the case. This happens in the practice of law all the time.