Découvrez un article captivant, exclusivement en anglais, rédigé par notre talentueuse collègue Kate Daniels-Addison, avocate, et publié dans Washington Defense Trial Lawyers. Une lecture incontournable pour approfondir votre compréhension des enjeux juridiques et découvrir les meilleures pratiques en droit transfrontalier.
Katherine (Kate) Daniels-Addison is a Gig Harbor, Washington native who attended UW Law and passed the Washington State Bar in 2019. During law school and after passing the bar exam, she worked for a small insurance defense firm. She later married a Canadian which caused her to migrate north to Vancouver, BC. She completed national exams and subsequently the BC process to become a licensed lawyer in BC. After working in a personal injury firm for three years, she switched back to doing defense work. Kate joined Gascon & Associates in November of 2024 where she primarily practices insurance defense for US insurers with Canadian claims – putting her US and Canadian experience to use!
“Do you have your robes yet?” one of senior associates asked me as we prepared for a two-week trial in March of 2021. “Robes? What?” I asked. “We robe for trial,” he responded, nonchalantly. After nervously asking a younger associate what “robes” were, I realized there were more differences between trials in the US and Canada than I had imagined.
I second chaired my first BC trial amidst the height of the COVID pandemic. Besides wearing “robes” which remind me of my law school graduation garb, we had to mask, call the judge “My Lord” (“My Lady” if female1), stand behind plexi-glass, bow to the judge, and do all of this in a court room with no windows and a red, 70s style carpet. It felt less like a trial and more like a religious ceremony sometimes. Then came the hell of closing submissions. During COVID in BC, jury trials were suspended. That meant, instead of delivering a closing argument to a jury, you were expected to write a 40 to 100 page written closing submission complete with summaries of evidence and supporting case law. The senior associate I worked with said he was pleased that we were out of the office by 11pm the night before closing and he had pulled an all-nighter on his last trial. Phew. An experience to say the least.
I was much happier and less avoidant of trials when jury trials were re-introduced in BC in October of 2022. There is no constitutional right to a jury in Canada, so even though jury trials were allowed again, most trials proceed via judge alone. I had many trials set to proceed in 2023, all of which settled. In the spring of 2024, I was approached by the owner of my then-firm to run a jury trial alongside him. As is the case with most trials, they are likely to settle. In this particular case, we settled damages, but liability was still hotly contested. That meant we had a gift – a five-day jury trial – short and sweet, and dare I say, fun?
Trial preparation closely mirrored the process we’d follow in Washington. We engaged in multiple discussions with our clients, reviewed incident footage thoroughly, consulted with our colleagues, and meticulously prepared our accident reconstructionist. Day one – jury selection. First, I learned that voir dire means something completely different in BC – unlike the process of selecting a jury in Washington, voir dire in BC meant what Washington litigators would refer to as motions in limine. Time to change my vocabulary – not the first time in BC.
Our trial commenced in June and our court room was on the top floor of the Vancouver courthouse, distinguished by its extensive glass windows and ceilings. We approached the courtroom donned in our “under robe” attire consisting of black pants, a black waistcoat, a white shirt with a very pointy collar, and our “tabs.” The heat is palpable. Outside the court room, the sheriff managed a line of approximately 50 onlooking, all waiting to be called into the court room.
Before the Justice entered the court room, we put on our robes. We made our introductions and had a brief conversation with the judge about the case before the jurors were called in. During this time, the court clerk handed us a single sheet of paper. The sheet of paper contained all the information we would learn about the jurors – their full name, the city in which they resided, and their occupation (which was missing on about 1/3 of them). To select our eight jurors, groups of five were called in at a time. We did not speak to the jurors, nor were we allowed to. The judge gave a three-sentence explanation of the case and asked them as a group whether any of them knew the parties or had a conflict which would make them unable to complete jury duty. The judge also asked them what their occupation was if it was missing on the list. Based on looks, name, occupation, and city, we had to make snap decisions, often in mere seconds, about whether to challenge a potential juror. We were allowed four peremptory challenges, in addition for cause.
As an American, this felt inherently wrong. Deciding on a juror based on their last name or ethnic appearance feels…unconstitutional. While Canada has abolished the peremptory challenge for criminal trials, it remains in use for civil trials
After we had our eight jurors, it was time to start. For the most part, the trial unfolded similarly to how it would in Washington—aside from, you know, donning the robes. A couple of small differences include calling the other lawyer “my friend” instead of “counsel for the Plaintiff” or “Mr. Smith,” – how very Canadian. Counsel are also expected to stay behind the lectern when questioning a witness – there’s no approaching or pacing about à la Perry Mason. Direct examination, cross-examination, and objections are very similar as is dismissing the jury to discuss a point of contention.
When it came to the end of the case, instead of using Pattern Jury Instructions, we use something called “Civil Jury Instructions,” affectionately referred to as “CIVJI.” Much debate was had on appropriate instructions to our jury before they were charged. After the charge, they were left to deliberate, and we had to wait.
After a stressful, long lunch, we were called back about two hours later. That was fast. Sweaty palms, black robe, June – you get the picture. The judge asked the jury to allot liability percentages as between the defendant and plaintiff. They found that the plaintiff was 90% liable and our defendant was 10% liable. Wow – shock but excitement flooded over us. Here’s the next kicker – counsel for the Plaintiff was not pleased. We are not allowed to discuss the verdict or thoughts of the jury after the verdict is announced. However, after the jury was dismissed, the Plaintiff’s lawyer asked for clarification to confirm that they found the plaintiff 90% liable and not the defendant. The judge called them back to clarify – yep, that’s what their verdict was. They were then dismissed again. No questions, no discussions, they were gone – much to the dismay of plaintiff’s counsel. You’re probably not surprised to read that this case is currently on appeal.
Having participated in three trials in BC—two bench and one jury—my experience has been truly eye-opening. As a Washingtonian, I always thought our neighbor to the north would be very similar given the common law regime. While there are similarities between Washington and BC litigation, running trials here has been a very interesting experience. If you’re a litigator considering a move up north, be prepared to robe!
1 BC changed these names in November 2021 to “Mr. Justice,” “Madam Justice,” or “Justice”
By: Katherine Daniels-Addison, Gascon & Associates LLP
Retrouvez l’article sur le Washington Defense Trial Lawyers ici
