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Inflammatory Opening Prompts Mistrial

Published in the November 2006 issue of Litigation Notes - View Article

After the opening address of counsel for the plaintiff in a jury trial, the defendant moved for a mistrial based upon several inappropriate remarks in the opening. The court noted that the purpose of an opening is to give a general idea of what will be given in evidence, defining the issues, and not to present argument. The plaintiff’s counsel referred to the defendant insurer’s receipt of the results of the plaintiff’s functional assessment requested by the insurer, and stated, “you would think at that point it is a pretty simple matter”, This was found to be blatantly argumentative.

The court found that several other statements were designed to appeal to the emotions of the jurors: a reference to the insurer’s decision to deny benefits to the plaintiff as a “betrayal” and the quoting of words allegedly spoken by the insurer’s representative – “I’ve dealt with people like you before. You are just trying to get a free ride in effect” – were found to be for the purpose of fanning the flame of the jurors’ emotions and to invite the reasoning that the insurer was treacherous.

The opening also included remarks about the plaintiff which were designed to encourage assessment based on emotion and not on fact, such as stating that after the denial of benefits, the plaintiff could not understand “why his character and his integrity were being challenged” and how the claims denial was “devastating,” to the point that the plaintiff “lives alone in a 10 by 10 room in the east side of Windsor, a flop house. It’s quite a tumble.”

Justice Ducharme granted the motion for a mistrial on the basis that plaintiff counsel’s opening was so full of inflammatory language that the defendant would be denied a fair trial and no jury instruction could remedy the prejudice.

Baillargeon v. Paul Revere Life Insurance Co., (2006) 81 O.R. (3d) 35 (C.A.)