Misstatements And Transgressions Of Counsel Lead To Mistrial

Statements made by counsel in a jury trial during opening and closing arguments can, if improper and prejudicial, lead to a mistrial. If the application for a mistrial is not made at the time of the original objection, it can be very difficult to succeed on an appeal for a new trial.


In Vander Maeden v. Condon, the Plaintiff was injured in two motor vehicle accidents, and brought ICBC claims for damages for pain and suffering, as well as other forms of damages. By consent, the matters were heard together in one trial by judge and jury. At the conclusion of Plaintiff counsel’s submissions, ICBC’S lawyer made an application for a mistrial, as well as a remedial order that, instead of a new trial, that the trial would continue by judge alone. Plaintiff‘s counsel argued that there was no need to discharge the jury, and that proper instructions from the judge could cure any defects. The Court acknowledged that while some of the misstatements and transgressions of Plaintiff‘s counsel could have been dealt with by proper instructions, their cumulative effect could not be cured. The Court granted both applications, commenting that:


[13] In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct.


[35] Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.


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