September 30, 2021 marks Canada’s first ever National Day for Truth and Reconciliation. The day honours the lost children and Survivors of residential schools, their families and communities. Public commemoration of the tragic and painful history and ongoing impacts of residential schools is a vital component of the reconciliation process. Better late then never?
As a personal injury lawyer, the big theme in the title of National Day for Truth and Reconciliation is the word “Truth“.
We are told as children, adults and throughout law school the importance of telling the truth; along with the importance of seeking out the truth.
But the truth can mean different things to different people.
There are two types of truths.
There are objective truths. These are facts or findings which nobody can deny or contradict.
Mathematics such as arithmetic and trigonometry are objective truths.
The time of day is an objective truth.
If you seek to discredit these objective truths, you will either be wrong; or appear as delusional. Or perhaps you’re a savant who has stumbled onto a new way of thinking which breaks the barriers or speed, sound and time; in which case we have all got a lot more learning to do 🙂
I trust you understand where I’m going with objective truths.
In a car accident case, some objective truths which both Plaintiffs and Defendants tend to agree upon include, but aren’t limited to:
- Day, time and location of the car accident
- Make, Colour, Model and License Plate of the vehicles
- Identity of the drivers and parties involved (sometimes those parties remain unidentified)
- Conviction of the at fault driver (if convicted of a driving offense in relation to the accident)
Unfortunately, it’s a pretty short list of objective truths which lawyers tend to agree upon in personal injury cases.
This is why litigation can be so contentious. So are often so few things which lawyers agree upon.
The second sort of truth is referred to as a “subjective truth“. This is one’s version of events, or one side of the story. And we all know that there are two sides to each story. These subjective truths get challenged by evidence, testimony and on cross examination.
Subjective truths are not based on math, science or any sort of empirical data. If they were, they would likely fall into the category of objective truths.
Rather, subjective truths are based on memory, feeling and a person’s interpretation or recollection of events and data.
This is very interesting for lawyers. Think of it as abstract art. Where one person sees a painting of a dog; another person may see the same painting and see a butterfly! Because the variance of subjective truths is so great; we tend to see vastly different versions of a story from the same event.
All a person can do in a case whether it’s on the witness stand or under oath at Examination for Discovery is tell their truth and hope that it’s accepted. It’s not in an insurer’s best interest to accept a Plaintiff’s truth or version of the events. They will view their stories as “self serving” or a Plaintiff as having a “selective memory” in order to best serve their narrative of events.
In personal injury cases, it’s often not about the truth per se. Rather, it’s about who a judge and jury will believe is telling the truth; even though it’s possible that their version of events may not reflect the actual truth, or the whole truth. What often happens in cases is that important witnesses omit or misinterpret certain events, facts or evidence to best suit their narrative.
A lawyer has a duty as an officer of the Court to present the facts and evidence to the Judge and Jury so that they can make a ruling. A lawyer also has a duty to fight on behalf of his/her client. What happens when the lawyer knows that the version of events being presented to the Court is not an accurate reflection of the truth? Does the lawyer get off the record mid trial? Does the lawyer stand up in open court to make submissions which undermines his/her client’s own evidence? Does the lawyer simply keep his/her mouth shut and let the Judge/Jury decide who’s credible and to be believed and who’s not?
Finally when it comes to the truth, it’s universally accepted that the will of the Jury ought to prevail. It’s also important for the Jury to understand as much as they can about the case so that they can make the best decision in the interests of justice.
But often in cases lawyers and judges keep things from the Jury which may be prejudicial to their decision making. The Judge may request that the jury be excused so that the lawyers can discuss whether or not certain facts are admissible or prejudicial for the case.
Things are intentionally NOT discussed before the Jury in personal injury cases. These omissions of the truth have an impact on the Jury’s ability to find the truth in a personal injury case. Take the following examples:
The identity of the insurance company (or the presence of an insurer) which is paying for the litigation costs and directing the litigation strategy; and paying the value of any Judgment is not disclosed to the Jury.
The fact that any award is NOT being paid by the individual Defendant but rather by his/her insurer (who is not named) is also not discussed.
The identity of the party (either Plaintiff or Defendant) who requested that the personal injury case be decided by a Jury instead of Judge alone is NOT disclosed to the Jury. If the Jurors knew which party elected to file a Jury notice, the Jury would likely resent that party. More often than not, Jury Notices are filed by Defendant insurers in personal injury cases; in particular for car accident cases.
The fact that there is a $40,000 deductible for pain and suffering claims in car accident cases is NOT disclosed to the Jury.
The fact that there is a verbal medico-legal threshold for pain and suffering in car accident cases is also NOT disclosed to the Jury.
The fact that collateral benefits are set off to the credit of the Defendant is also NOT disclosed to the Jury.
One has to wonder if we are deliberately hiding so many variables from the Jury; then how is a Jury is ever able to find the truth? These are the things that make me wonder on the National Day for Truth and Reconciliation.