Review the transcript from the court proceedings
- Review the judge’s instructions on Page 22 of the trial document
- Reach a guilty or non guilty verdict (page 23) based on the merits of the arguments and an $ award if you rule guilty
- Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case
Civil Procedure and Trial Practice
Week 3
Pre-Trial: Pleadings
Pleadings: the written statements of fact and law filed with a court by the parties to a lawsuit.
Complaint
Summons
Demurrer
Answer
Counterclaim
Bill of Particulars
Complaint
Sets forth the relevant allegations of fact that give rise to the legal cause of action(s), plus damages requested.
Essential elements of a complaint:
A short, concise statement of the grounds on which the court’s jurisdiction depends (the court’s authority to hear the case)
A statement of the claim demonstrating that the pleader is entitled to relief
A demand for judgment for the relief to which the plaintiff deems himself or herself entitled
Summons
A legal document issued by a court and served on an individual announcing that a legal proceeding has been commenced.
Provides the date and place where the defendant must appear to respond to and answer the complaint.
In some jurisdictions, a complaint must accompany a summons.
Summons must be properly served
Demurrer
A pleading is filed by a defendant challenging legal sufficiency of a complaint
The pleading represents preliminary objections that are constructed so as to preempt “answering” the plaintiff’s complaint
Answer
The answer to a complaint requires the defendant to respond to each of the allegations of the complaint.
A pleading admits or denies each of the allegations.
If Defendant does not provide response in time, Plaintiff can seek default judgment
Counterclaim
Denial of the plaintiff’s claims by alleging that it was the plaintiff, and not the defendant, who committed a wrongful act and, therefore, it is the defendant who is entitled to damages
Pleadings: Bill of Particulars
Written request by the Defendant for more detailed information from the Plaintiff:
Date and time the alleged malpractice occurred
Specific injuries alleged
Where the alleged malpractice occurred
Negligent acts alleged to have occurred
How the alleged malpractice occurred
Listing of injuries claimed
Listing of any witnesses who alleged malpractice
Listing of damages
Name and address of plaintiff’s employer
Pre-Trial: Discovery (Examination before Trial)
Process of investigating facts of a case before trial
Discovery rules promulgated to prevent trial by ambush
Objectives of discovery
Obtain evidence that might not be obtainable at time of trial
Isolate and narrow issues for trial
Gather evidence that may be admissible at trial
Enable discovering party to gather further evidence
Deposition
A deposition, taken at an examination before trial (EBT), is the testimony of a witness that has been recorded in a written format.
Preparation of witnesses
The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case.
Each witness should be well-prepared before testifying.
Preparation should include a review of all pertinent records.
Attorney-Client Privilege
Confidential communications made by a client and an attorney
Elements necessary to establish privilege
Both parties must agree attorney–client relationship does or will exist.
Client must seek advice from attorney in his or her capacity as a legal advisor.
Communication between attorney and client must be identified to be confidential.
What is the purpose of attorney-client privilege?
Incident and Investigative Reports
Hospital incident and investigative reports
Not generally protected from discovery
Ordinary course of business vs. work product in anticipation of litigation
Statistical data
Not always privileged
Usually purpose is to influence and improve the quality of health care
Pre-Trial: Motions
A procedural step after the pleadings have been completed, either party may move for a judgment on the pleadings
Motion to Dismiss
Motion for Summary Judgment
Must be NO substantial dispute regarding the presented facts
Motion to Dismiss
Motion to dismiss a case
Defendant alleges plaintiff’s complaint, even if believed, does not set forth a claim or cause of action recognized by law
A motion to dismiss can be made before, during, or after a trial.
Examples: Court lacks jurisdiction or statute of limitations has passed
Motion for Summary Judgment
Either party to a suit may believe that there are no triable issues of fact and only issues of law to be decided.
Either party may make a motion for summary judgment.
Courts are reluctant to look favorably on such motions.
Will be granted if circumstances of a case warrant it
Pre-Trial: Conference
Informal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues, and settle procedural matters relating to the trial
Pre-Trial: Notice of Trial
Once a decision to go forward is reached, the case is placed on a court calendar.
Postponement of the trial may be secured with the consent of both parties and the consent of the court.
Pre-Trial: Memorandum of Law
A memorandum of law (or trial brief) presents to the court the nature of the case, cites case decisions to substantiate arguments, and aids the court regarding points of law.
The Judge
Handles conduct of trial
Decides questions of law
Determines issues of procedure
Decides if evidence admissible
Charges the jury
May direct a verdict
Appellate level: panel of judges will review the trail court’s decision based on the arguments of the parties’ attorneys
The Jury
The jury reviews the facts of a case offered by opposing counsels and makes an impartial decision regarding guilt.
Also determines damages
Jury selection process: Lawyers for both parties question each prospective jury member for impartiality, bias and prejudicial thinking (voir dire)
Waiver of trial by jury
Subpoena
A legal order requiring the appearance of a witness and/or the presentation of documents at a legal proceeding
Subpoena ad testificandum
Subpoena for a witness
Subpoena duces tecum
Subpoena of records
Burden of Proof
The obligation of the plaintiff to persuade the jury regarding the truth of his or her case
Preponderance of credible evidence must be presented for a plaintiff to recover damages.
Credible evidence is evidence that, in the light of reason and common sense, is worthy of belief.
Res Ipsa Loquitur: The Thing Speaks for Itself
Legal doctrine that shifts the burden of proof from the plaintiff to the defendant
Res Ipsa Loquitur: Plaintiff Must Show
Event causing injury: Would not normally have occurred in the absence of negligence
Defendant: Must have exclusive control over instrument causing injury
Plaintiff: Must not have contributed to the event causing injury
Res Ipsa Loquitur: Case Examples
Franklin v. Collins Chapel Correctional Hospital: nursing facility had exclusive control over the bath wherein burns were allegedly suffered + burns would not normally occur absent negligence
Gold v. Ishak: An oxygen mask catching fire during surgery would not have occurred in the ordinary course of things with proper care + the injuring instrument was under the exclusive control of the medical providers + patient could not have contributed to injury
Trial: Opening Statements
Plaintiff’s attorney
Provides, in capsule form, the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client
Defense attorney
Explains the facts as they apply to the case for the defendant
Examination of Witnesses
Officer of Court administers oath
Direct examination
Cross examination
Redirect examination
Recross examination
Evidence – Direct
Direct evidence
Direct evidence is proof offered through direct testimony.
Admissibility of expert testimony
Gross negligence (may not need expert testimony)
Evidence – Demonstrative
Demonstrative evidence
Evidence furnished by things themselves
Considered the most trustworthy and preferred type of evidence
Consists of tangible objects to which testimony refers
Photographs
Imaging studies
Viewing patient injuries
Evidence will be admitted if it is relevant, has probative value, serves the interests of justice
When would it not be admissible?
Evidence – Documentary
Documentary evidence: written information capable of making a truthful statement
Medical records
Manufacturers’ drug inserts
Statutes, rules, and regulations: duty owed to a particular class of persons who are protected by the law
Ex: Nurse patient ratio of no less than one registered nurse to 4 residents in a nursing home
Organizational policies and procedures
Facebook entries and e-mails
Evidence – Hearsay
Hearsay evidence
Based on what another has said or done and is not the result of the personal knowledge of the witness
Statement made outside of court
Because it is hearsay, it is therefore objectionable
Medical books as hearsay evidence
Exceptions: dying declaration, official records, etc
Can be used to show that a statement was made, but not as proof of facts
Presenting Evidence
Expert testimony
Experts necessary
When issues to be resolved are outside the experience of the average juror
Experts not always necessary
When issues are within common knowledge understanding
For example: Broken bones should be X-rayed.
Judicial Notice Rule
Prescribes that well-known facts (e.g., fractures require prompt attention, two X-rays of the same patient may show different results) need not be proven
A court recognizes that a particular fact in a case is so commonly known by the average person that expert testimony is not necessary to establish the fact
Defenses Against Plaintiff’s Allegations
Ignorance is NO defense to the law!
Assumption of risk
Contributory negligence
Comparative negligence
Good Samaritan statutes
Borrowed Servant doctrine
Captain of the Ship doctrine
Statute of limitations
Sovereign immunity
State immunity laws
Intervening cause
Legal Defenses – Assumption of Risk
Knowing that a danger exists but voluntarily accepting the risk through exposure
Elements:
The Plaintiff knows and understands the risk that is being incurred
The choice to accept the risk must be free and voluntary
Ex: consent to surgery
Legal Defenses – Contributory Negligence
When a person does not exercise reasonable care of his/her own safety
Elements:
The Plaintiff’s conduct falls below the required standard of personal care
Causal connection between the Plaintiff’s careless conduct and his/her injury
Ex: failed to follow physician’s instructions, refuses or neglects prescribed treatment, intentionally provides wrong information that leads to injury
Legal Defenses –Comparative Negligence
The degree of negligence of each party is established by the finder of fact
Each party if responsible for the proportional share of any damages awarded
Difference btw comparative and contributory negligence: comparative negligence seeks to compensate the injured party at least for some part of his or her injuries, while contributory negligence is a total bar to any damage award to the plaintiff
Legal Defenses – Good Samaritan Statutes
Relieves healthcare professionals and laypersons from liability in certain emergency situations
Good faith standard
Usually protected from ordinary negligence, not gross negligence
Must render help voluntarily without expectation of pay later
Legal Defenses –Borrowed Servant Doctrine
Applies when an employer lends an employee to another for a particular assignment
The employer is not liable for injury negligently caused by the servant while in the special service of another
If the other had exclusive control over the employee
Legal Defenses –Statute of Limitations
Legislatively imposed time constraint that restrict the period after the occurrence of an injury during which a legal action must be commenced
Ex:
Time of the wrongful act
Date when injury is discovered
Date when the contract ended
Time when fraud is discovered
When patient becomes aware of malpractice
Legal Defenses – Immunity
Sovereign immunity: federal and state governments have historically been immune from liability for harm suffered from the tortious conduct of government employees
State immunity laws: state laws specify when a government entity may be liable for tortious conduct
Legal Defenses – Intervening Cause
An unforeseeable force coming into being after a defendant’s negligent act, which cancels the defendant’s liability by breaking the chain of causation from the defendant’s act to the plaintiff’s injury
Such an act destroys the casual connection between the negligent act of the defendant and the injury
Damages are not recoverable because the original act is not the probable cause of the plaintiff’s injury
Unforeseeable Causes
Malicious, intervening acts, if unforeseeable
Intervention by one with a higher ethical duty to the victim (e.g., parent or guardian)
Extraordinarily negligent intervening conduct
Acts of God (e.g., floods, hurricanes, tornados, earthquakes)
Case: Lightning Strikes
Mary underwent surgery at General Hospital in Anytown, U.S.A. The power grid in the Northeast shut down and the hospital’s emergency generator came online. Lightning struck the generator and the operating room lights went out. The surgeon cut an artery while completing Mary’s surgery under difficult circumstances. Mary suffered serious injuries. Mary sues the surgeon.
Will Mary succeed in her lawsuit?
Case: Lightning Strikes
No!
There was a superseding intervening cause
It was unforeseeable that the power grid in the Northeast would shut down and lightning would strike the generator
Foreseeable Intervening Causes
Those subsequent forces that
Objectively speaking, one should reasonably anticipate, or
Those the defendant should reasonably anticipate under the circumstances
Injury from Stretcher Transport
Mindy, while transporting Jen to a minor treatment room, negligently pushes Jen’s stretcher through corridors, injuring her foot. While being operated on for foot injuries, Jen miscarriages.
Are the hospital and Mindy liable for Jen’s miscarriage?
Injury from Stretcher Transport
Yes!
Mindy, the negligent defendant, is liable for intervening acts as long as they are foreseeable
Exercise 2 –Mock Trial
Download Week 3 Exercise 2 from Blackboard- Mock Trial
Review the transcript from the court proceedings
Review the judge’s instructions on Page 22 of the trial document
Reach a guilty or non guilty verdict (page 23) based on the merits of the arguments
Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case
Reply to one post that reaches the opposing verdict of your verdict and analyze where you differed in your opinions
End of Trial
Closing statements: summarize what they have proven
Judge’s charge to jury
Describes the responsibility of the jury
The law applicable to the case
Advise the jury of the available alternatives
Jury charges must be clear
Jury instructions must not be prejudicial
Jury deliberation and determination
50
Awarding Damages
Nominal: Are a token in recognition that a wrong has been committed. In such cases, the amount of compensation is insignificant
Compensatory: Intended as reparation for detriment or injury sustained
Hedonic: Awarded to compensate plaintiff for loss of enjoyment of life
Punitive: Additional monetary awards when an injury is caused by gross carelessness or disregard for others’ safety
51
Joint and Several Liability
All joint or concurrent tortfeasors are independently at fault for their own wrongful act
A hospital knew of should have known of a surgeon’s incompetence because of the surgeon's prior negligence (no effective monitoring system)
Permits defendant to bring suit against all persons sharing responsibility for injuries
Permits plaintiff to collect from any “one” or “all” of defendants
Several liability: each party to a lawsuit is liable only to the degree he/she contributed to the injury
52
Appeals
Reviews a case on the basis of the trial records, written briefs, and concise oral arguments (if requested)
Grounds for Appeal:
Verdict excessive
Evidence rejected that should have been accepted
Inadmissible evidence permitted
Admissible evidence wrongfully excluded
Verdict contrary to weight of evidence
Court improperly charged the jury
Verdict is result of bias, prejudice, passion
53
Execution of Judgments
Once the amount of damages has been established and all the appeals have been heard, the defendant must comply with the judgment
This follows after all appeals have been exhausted
54
Exercise 1: Negligence Defenses
Review the case study in our text on pages 139-140 Chapter 8 It’s Your Gavel
Reach your own verdict based on the information provided.
Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case
If you agree with the jury’s verdict, explain why. If you disagree, explain why.
Reply to one post to complete the exercise.
,
1Donald Brashear vs Marty McSorley Civll Mock Trial
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN
DONALD BRASHEAR
PLAINTIFF
AND
MARTY MCSORLEY
DEFENDANT
(Issue: Is Marty McSorley liable for personally injuring Donald Brashear?)
CLERK: Order in the court, the Honourable Mister/Madam Justice _____________ presiding.
[Everyone stands as the judge enters the courtroom.]
JUDGE: You may be seated.
[Everyone sits, except the clerk.]
CLERK: The case of Brashear vs. McSorley, my Lord/Lady.
[Clerk sits.]
JUDGE: Thank you. Are all parties present?
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Yes, my Lord/Lady. I am _________________ and these are my co-counsel
_________________ and _________________. We are acting on behalf of the plaintiff Donald Brashear in this matter.
[Please note that this statement can be adjusted depending on the number of lawyers for each side.]
[Plaintiff’s counsel sits; defendant’s counsel stands.]
DEFENDANT’S COUNSEL: Yes, my Lord/Lady. I am _________________ and these are my co-counsel
_________________ and _________________. We are acting on behalf of the defendant, Marty McSorley, in this matter.
[Again, statement can be adjusted depending on number of lawyers.]
CIVIL MOCK TRIAL
2 Donald Brashear vs Marty McSorley Civll Mock Trial
[Defendant’s counsel sits.]
JUDGE: Thank you. Good day ladies and gentlemen of the jury. I begin with some general comments on our roles in this civil trial. Throughout these proceedings, you will act as judges of the facts and I will act as the judge of the law. Although I may comment on the evidence, you are the only judges of evidence. However, when I tell you what the law is, my view of the law must be accepted.
There is a basic principle that is fundamental to your role as jurors. In this case, there is a requirement of proof on a balance of probabilities which means evidence that has more weight and is more probable must be accepted.
There is a basic rule requiring that you decide this case on the balance of probabilities. That means if you take all the evidence and one party is more correct or right than the other then that party would be successful. If the plaintiff’s case is more correct, then the defendant will be found to be liable and at fault. If the defendant is more correct, then the case would be dismissed. There is also a rule regarding personal injury. The plaintiff has to prove that the defendant is responsible for the injuries sustained before a decision can be reached. I now ask the plaintiff’s counsel to present his case.
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Ladies and gentlemen of the jury, I will be representing Mr. Donald Brashear, the
plaintiff in this case.
We intend to prove that the defendant in this case, Marty McSorley, was negligent, as he was reckless of the consequences of his ruthless assault on my client on February 21, 2000, in the Canucks vs. Bruins game at GM Place.
My client was seriously injured, and to prove this negligence we intend to call Mr. Brashear; the referee that night, Mr. Brad Watson, who witnessed the assault; and Dr. Rui Avelar, who will testify about Mr. Brashear’s serious injuries. We now wish to call our first witness, Donald Brashear.
[Donald Brashear takes the stand and remains standing while he is taking the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
BRASHEAR: I do.
CLERK: Please state your full name and spell your last name for the record.
BRASHEAR: My name is Donald Brashear, B-R-A-S-H-E-A-R.
JUDGE: Please be seated. Go ahead counsel.
[Donald Brashear sits.]
3Donald Brashear vs Marty McSorley Civll Mock Trial
PLAINTIFF’S COUNSEL: Mr. Brashear, please tell the court what happened on the evening of February
21, 2000.
BRASHEAR: I was playing a game for the Canucks against the Boston Bruins in GM Place.
PLAINTIFF’S COUNSEL: Was Mr. McSorley playing in that game?
BRASHEAR: Yes he was.
PLAINTIFF’S COUNSEL: Do you see Mr. McSorley in court today?
BRASHEAR: Yes he is sitting right over there. (Points to Marty McSorley.)
PLAINTIFF’S COUNSEL: Let the record show that the witness pointed to the defendant. Did you get into
a fight with Mr. McSorley early in the game?
BRASHEAR: McSorley and I got into a fight. We both threw a punch, but the referee broke us up pretty quickly. After serving our penalties we just continued playing.
PLAINTIFF’S COUNSEL: What else happened in the game with Mr. McSorley?
BRASHEAR: McSorley wanted to fight again but I refused and skated away from him.
PLAINTIFF’S COUNSEL: What happened next?
BRASHEAR: I was skating and I heard somebody skate up behind me. The last thing I can remember is an intense pain on the side of my head.
PLAINTIFF’S COUNSEL: Do you know what caused the pain?
BRASHEAR: Yes, McSorley hit me with his stick.
PLAINTIFF’S COUNSEL: Were you wearing a helmet?
BRASHEAR: Yes, I was wearing a standard issue NHL helmet.
PLAINTIFF’S COUNSEL: And how long were you in the hospital?
BRASHEAR: I was in the hospital for two days but could not play hockey for 3 weeks.
PLAINTIFF’S COUNSEL: What injuries did you receive?
4 Donald Brashear vs Marty McSorley Civll Mock Trial
BRASHEAR: I had cuts to my head and a concussion. I also have problems remembering things sometimes.
PLAINTIFF’S COUNSEL: How much did you lose as a result of the incident?
BRASHEAR: You mean my salary?
PLAINTIFF’S COUNSEL: I mean everything.
BRASHEAR: Well it cost me with the Canucks. I lost quite a bit of my salary and about $750,000 in total for my medical costs, therapy, my wages, and loss of potential endorsements. I also have recurring pain and I have had to hire legal representation.
PLAINTIFF’S COUNSEL: You felt pain on the side of your head didn’t you?
[Defendant’s counsel stands.]
DEFENDANT’S COUNSEL: Objection my Lord/Lady! Please ask my friend to refrain from leading the
witness.
[Defendant’s counsel sits.]
PLAINTIFF’S COUNSEL: My Lord/Lady, I am not leading on an essential element such as identification of
the accused but on an undisputed fact.
JUDGE: Objection sustained. Please rephrase your question.
PLAINTIFF’S COUNSEL: Where did you feel pain?
BRASHEAR: There was a sharp pain on the side of my head.
PLAINTIFF’S COUNSEL: Did Mr. McSorley hit you from behind?
BRASHEAR: Yes, McSorley took a cheap shot. I couldn’t see him coming and he whacked me with his hockey stick.
PLAINTIFF’S COUNSEL: Thank you. No further questions my Lord/Lady.
[Plaintiff’s counsel sits.]
JUDGE: Does the defence wish to cross-examine this witness?
[Defendant’s counsel stands.]
5Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: Yes my Lord/Lady. Is it correct that you couldn’t see who hit you?
BRASHEAR: Yes.
DEFENDANT’S COUNSEL: How are you so sure that it was Mr. McSorley then?
BRASHEAR: People told me and I saw a video of the hit.
DEFENDANT’S COUNSEL: Did you feel any pain in your shoulder?
BRASHEAR: I had hit some Bruins pretty hard earlier in the game. My shoulder was a little sore but that was the norm.
DEFENDANT’S COUNSEL: So it’s possible that Mr. McSorley was just trying to hit your shoulder?
BRASHEAR: No, he hit my head and it looked like it was on purpose.
DEFENDANT’S COUNSEL: Did you and McSorley have a fight earlier in the game?
BRASHEAR: Yes.
DEFENDANT’S COUNSEL: Is it true that you started the fight?
BRASHEAR: Yes, I did.
DEFENDANT’S COUNSEL: Do you understand that fighting is part of the game of hockey?
BRASHEAR: Yes I do, but you cannot attack from behind and hit people’s heads with hockey sticks.
DEFENDANT’S COUNSEL: When you check someone, do you do it with all your might?
BRASHEAR: Yes I do, but with a reasonable amount of force and not with a hockey stick.
DEFENDANT’S COUNSEL: Is it reasonable and acceptable to check someone by hitting them on the upper
back?
BRASHEAR: Yes it is reasonable, but he used his hockey stick and hit me on my head.
6 Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: Haven’t you used your stick to push or grab hold of other players?
BRASHEAR: On a few occasions.
DEFENDANT’S COUNSEL: You were just lucky you didn’t miss the body and hit somebody’s head weren’t
you?
BRASHEAR: Well, no. I am careful how I use my stick.
DEFENDANT’S COUNSEL: Haven’t you been injured in hockey games before?
BRASHEAR: Yes I have been injured before but never this seriously.
DEFENDANT’S COUNSEL: Were you or were you not playing three weeks later?
BRASHEAR: Yes I was but I still lost money on endorsements and medical expenses.
DEFENDANT’S COUNSEL: Doesn’t your health insurance or the Canucks cover the cost of your injuries?
BRASHEAR: Well, yes, but I still don’t get paid if I don’t play. The insurance doesn’t pay my salary.
DEFENDANT’S COUNSEL: Mr. Brashear, is it true that you did not pay for any medical expenses? I remind
you that you are under oath.
BRASHEAR: I suppose so.
DEFENDANT’S COUNSEL: At that time were you wearing a faulty helmet which could not be properly
fastened?
BRASHEAR: No, it was McSorley’s hit that made my helmet faulty.
DEFENDANT’S COUNSEL: You have been in hundreds of fights in the NHL haven’t you?
BRASHEAR: Yes.
DEFENDANT’S COUNSEL: You consent to fight all the time don’t you? It’s part of the game?
BRASHEAR: Clean hits and fair fights are part of the game, not hitting from behind with hockey sticks.
7Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: Is it true that you have no lasting injuries?
BRASHEAR: No, I have recurring pain and other problems.
DEFENDANT’S COUNSEL: What other problems?
BRASHEAR: Just what my doctor told me.
DEFENDANT’S COUNSEL: The doctor whom you are paying?
PLAINTIFF’S COUNSEL: Objection.
DEFENDANT’S COUNSEL: Withdrawn, my Lord/Lady. That completes my cross-examination.
[Defendant’s counsel sits.]
JUDGE: Thank you counsel. Mr. Brashear, you are excused. You may call your next witness.
[Donald Brashear leaves the witness box; plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: We call Brad Watson, my Lord/Lady.
[Brad Watson takes the stand and remains standing for the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
WATSON: I do.
CLERK: Please state your full name and spell your last name for the record.
WATSON: Brad Watson, W-A-T-S-O-N.
JUDGE: Please be seated. Go ahead counsel.
[Brad Watson sits.]
PLAINTIFF’S COUNSEL: Mr. Watson, where were you on the night of February 21, 2000?
WATSON: I was the referee at the game between the Vancouver Canucks and the Bruins at GM Place.
8 Donald Brashear vs Marty McSorley Civll Mock Trial
PLAINTIFF’S COUNSEL: Did you see Mr. Brashear and Mr. McSorley there?
WATSON: Yes they were playing.
PLAINTIFF’S COUNSEL: Do you see the two players in court today?
WATSON: Yes. They are over there. [Points at Donald Brashear and Marty McSorley.]
PLAINTIFF’S COUNSEL: Let the record show the witness has identified the plaintiff and the defendant,
my Lord/Lady.
PLAINTIFF’S COUNSEL: Did anything unusual happen during this game?
WATSON: Well, early in the game I saw Brashear and McSorley fighting. They both punched each other in the head several times before the fight was broken up.
PLAINTIFF’S COUNSEL: Then what happened?
WATSON: Later in the game McSorley challenged Brashear to another fight but Brashear refused and skated away from him. McSorley skated after him until he caught up with him.
PLAINTIFF’S COUNSEL: What did Mr. McSorley do next?
WATSON: McSorley raised his stick and hit Brashear very hard on the side of his head.
PLAINTIFF’S COUNSEL: Was Brashear able to defend himself?
WATSON: No! McSorley struck him from behind. He had no time to defend himself.
PLAINTIFF’S COUNSEL: Did you see anything else?
WATSON: Yes, one last thing. Brashear’s helmet flew off and he hit his head, very hard, on the ice. He was unconscious and bleeding.
PLAINTIFF’S COUNSEL: Thank you Mr. Watson. No further questions my Lord/Lady.
[Plaintiff’s counsel sits.]
JUDGE: Does the defence wish to cross-examine this witness?
[Defendant’s counsel stands.]
9Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: Yes my Lord/Lady. Did you have a clear view of the incident?
WATSON: I did. They were right in front of me and I was sort of expecting more fighting from the two of them so I was watching carefully.
DEFENDANT’S COUNSEL: Did Brashear and McSorley fight earlier in the game?
WATSON: Yes.
DEFENDANT’S COUNSEL: Is it not common for hockey players to check other players as hard as they can?
WATSON: Yes, but not on the side of the head and with their sticks.
DEFENDANT’S COUNSEL: Is it not common for a player to check a player by hitting them on the upper
arm or upper back?
WATSON: Yes, but like I said before, McSorley checked him on the side of his head.
DEFENDANT’S COUNSEL: Fighting between two players is common, is it not?
WATSON: Yes, but in my career I have never seen anyone get this badly hurt. The stick did a lot of damage.
DEFENDANT’S COUNSEL: No further questions my Lord/Lady.
[Defendant’s counsel sits.]
JUDGE: Thank you counsel. Mr. Watson, you are excused. You may call your next witness.
[Brad Watson leaves the witness box; plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: We call Dr. Avelar my Lord/Lady.
[Dr. Avelar takes the stand and remains standing to take the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
AVELAR: I do.
CLERK: Please state your full name and spell your last name for the record.
AVELAR: Dr. Rui Avelar, A-V-E-L-A-R.
10 Donald Brashear vs Marty McSorley Civll Mock Trial
JUDGE: You may be seated. Go ahead counsel.
[Dr. Avelar sits.]
PLAINTIFF’S COUNSEL: Doctor, what are your qualifications?
AVELAR: I am a qualified medical doctor and have been practicing medicine for over 25 years. I specialize in sports medicine and have contracts with several NHL teams. I help them in their training and I take care of their medical problems.
PLAINTIFF’S COUNSEL: Where were you on February 21, 2000?
AVELAR: I was at the Canucks/Bruins game here in Vancouver.
PLAINTIFF’S COUNSEL: What happened that night?
AVELAR: During the game I was called to attend Donald Brashear. He was lying on the ice unconscious.
PLAINTIFF’S COUNSEL: Do you see Donald Brashear here today in court?
AVELAR: Yes. [Points to Donald Brashear.]
PLAINTIFF’S COUNSEL: Let the record show that the witness identified the plaintiff my Lord/Lady.
What did you do when you arrived on the ice?
AVELAR: I examined a wound to the side of his head which was bleeding.
PLAINTIFF’S COUNSEL: Please proceed.
AVELAR: Well, we took him to the hospital where I examined him again.
PLAINTIFF’S COUNSEL: What do you think caused this wound?
AVELAR: It is my medical opinion that the injury was caused by a hockey stick. There was a tremendous amount of force used.
PLAINTIFF’S COUNSEL: How serious were his injuries?
AVELAR: He sustained a level 3 concussion which is quite serious. His skull was knocked around and his scalp had a deep cut. He required 42 stitches.
11Donald Brashear vs Marty McSorley Civll Mock Trial
PLAINTIFF’S COUNSEL: Were the injuries serious enough to keep him off the ice?
AVELAR: Yes indeed. For any ordinary concussion the standard NHL procedure is to miss a few games. With an injury the severity of Mr. Brashear’s more action was needed. I ordered him to refrain from playing for about 3 weeks.
PLAINTIFF’S COUNSEL: Thank you Dr. Avelar. No further questions my Lord/Lady.
[Plaintiff’s counsel sits.]
JUDGE: Does the defence wish to cross-examine this witness?
[Defendant’s counsel stands.]
DEFENDANT’S COUNSEL: Yes my Lord/Lady. Is hockey a tough sport where everyone gets hurt?
AVELAR: Yes it is, but Mr. Brashear was quite injured. Over the course of twenty-five years I have seen many hockey related injuries but very few have been as serious as Mr. Brashear’s.
DEFENDANT’S COUNSEL: Many of the injuries you see are results of players fighting, are they not?
AVELAR: Yes, but this was not a fair fight because he got hit from behind.
DEFENDANT’S COUNSEL: Have you treated lots of players with cuts and bruises to the head because of
fighting?
AVELAR: Yes, but this is one of the most serious yet.
DEFENDANT’S COUNSEL: Could the injury be caused by his head hitting the ice?
AVELAR: No, in my opinion it was caused by him being hit by the stick.
DEFENDANT’S COUNSEL: Are you saying Dr. Avelar that there is no chance of his injury being caused by
the ice?
AVELAR: I suppose there is a chance, but it’s very unlikely.
DEFENDANT’S COUNSEL: My Lord/Lady, that completes my cross-examination.
[Defendant’s counsel sits.]
12 Donald Brashear vs Marty McSorley Civll Mock Trial
JUDGE: Thank you counsel. Dr. Avelar, you are excused. You may call your next witness.
[Dr. Avelar exits the witness box; plaintiff’s counsel stands.] PLAINTIFF’S COUNSEL: My Lord/Lady, that completes the plaintiff’s case.
[Plaintiff’s counsel sits.]
JUDGE: I now call upon the Defendant’s Counsel to make their opening statement and to proceed with their case.
[Defendant’s counsel stands.]
DEFENDANT’S COUNSEL: Good day ladies and gentlemen. I’m sure that you all know that hockey is a
sport of roughness and physical contact. Nobody can totally control it. Physical contact is simply part of the game. Every hockey player knows that, from time to time, they are bound to be in a fight with another player and they accept that as part of the game, that is, they consent to the fights.
Prior to the incident on February 21, 2000, Donald Brashear had been involved in many fights. Earlier in the game, he had fought with Mr. McSorley. Later on, Mr. McSorley was just trying to get Mr. Brashear to fight. The blow to the head was not intentional. Mr. McSorley was trying to hit Mr. Brashear on the arm in order to get him to turn and fight. Unfortunately, he accidentally struck him a little higher causing him to fall.
The reason Mr. Brashear lost consciousness was not due to the blow to the head, but to the fact that he was wearing a defective helmet. The helmet was missing a major strap and padding on the inside that keeps your helmet on your head and protects the skull. Therefore, the helmet did not protect Mr. Brashear when he fell to the ice. The ice, not Mr. McSorley’s hockey stick, caused Mr. Brashear’s injuries.
When Brashear lost consciousness, he was not seriously hurt and was back playing within weeks.
We will call Mr. McSorley, Wayne Gretzky and Don Cherry to give evidence in our case. Now we will call our first witness, Marty McSorley.
[Marty McSorley takes the stand and remains standing while he is taking the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
MCSORLEY: I do.
CLERK: Please state your full name and spell your last name for the record.
MCSORLEY: Marty McSorley, M-C-S-O-R-L-E-Y.
13Donald Brashear vs Marty McSorley Civll Mock Trial
JUDGE: You may be seated. Go ahead counsel.
[Marty McSorley sits.]
DEFENDANT’S COUNSEL: How many seasons have you played hockey?
MCSORLEY I have played for 17 years.
DEFENDANT’S COUNSEL: Have you ever seen an incident such as the one that happened on February 21,
2000?
MCSORLEY: I have seen many players accidentally struck in the head by sticks; in fact, it even happened to me.
DEFENDANT’S COUNSEL: Did you and Brashear fight earlier in the game?
MCSORLEY: Yes, he started that one.
DEFENDANT’S COUNSEL: Did you fight again?
MCSORLEY: I tried to get him to fight me again.
DEFENDANT’S COUNSEL: How?
MCSORLEY: I skated up behind him and tried to turn him around with my stick.
DEFENDANT’S COUNSEL: What happened?
MCSORLEY: I only meant to hit him in the upper arm, but I accidentally hit him in the head. I just wanted to try to make him fight me again.
DEFENDANT’S COUNSEL: Did you mean to hit him in the head?
MCSORLEY: No. It was an accident.
DEFENDANT’S COUNSEL: Did you hit him hard?
MCSORLEY: Not really. I probably caused him to fall, but I’m sure I didn’t hit him hard enough to cause his concussion. That was the ice.
[Plaintiff’s counsel stands.]
14 Donald Brashear vs Marty McSorley Civll Mock Trial
PLAINTIFF’S COUNSEL: Objection my Lord/Lady. The witness is not qualified to give an expert medical
opinion on the cause of my client’s injuries.
[Plaintiff’s counsel sits.]
DEFENDANT’S COUNSEL: My Lord/Lady, Mr. McSorley was present at the incident. He is an expert on
what happened there.
JUDGE: Mr. McSorley is not a medical expert. Objection sustained. The jury will disregard the witness’s last comment.
DEFENDANT’S COUNSEL: What happened when he fell?
MCSORLEY: His helmet wasn’t properly done up. It came off before he hit the ice. He hit his head hard on the ice.
DEFENDANT’S COUNSEL: Do you feel sorry for hitting Brashear in the head?
MCSORLEY: Yes I do. I didn’t know I hit him that hard.
DEFENDANT’S COUNSEL: No further questions.
[Defendant’s counsel sits.]
JUDGE: Does the plaintiff wish to cross-examine this witness?
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Yes my Lord/Lady. You’ve been playing hockey for 17 years now is that correct?
MCSORLEY: Yes.
PLAINTIFF’S COUNSEL: How many fights do you think you have been in during the course of your
career?
MCSORLEY: I don’t know. I can’t really give you a number.
PLAINTIFF’S COUNSEL: Would you say that a couple of hundred is a reasonable number?
MCSORLEY: Yeah, it’s probably around a couple of hundred.
PLAINTIFF’S COUNSEL: You’re pretty experienced at fighting then?
15Donald Brashear vs Marty McSorley Civll Mock Trial
MCSORLEY: I guess you could say that.
PLAINTIFF’S COUNSEL: Doing it for 17 years you must win most of your fights.
MCSORLEY: Most of them.
PLAINTIFF’S COUNSEL: Did you win the first one on February 21, 2000?
MCSORLEY: No. Brashear got me.
PLAINTIFF’S COUNSEL: Did that make you mad? Losing a fight on national television?
MCSORLEY: It happens.
PLAINTIFF’S COUNSEL: Do you mean losing a fight or getting mad enough to batter Mr. Brashear with
a hockey stick?
MCSORLEY: It was an accident.
PLAINTIFF’S COUNSEL: My Lord/Lady, that completes my cross-examination.
[Plaintiff’s counsel sits.]
JUDGE: Thank you counsel. Mr. McSorley, you are excused. You may call your next witness.
[Mr. McSorley leaves the witness box; defendant’s counsel stands.]
DEFENDANT’S COUNSEL: We call Wayne Gretzky.
[Wayne Gretzky takes the stand and remains standing while he is taking the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
GRETZKY: I do.
CLERK: Please state your full name and spell your last name for the record.
GRETZKY: Wayne Gretzky, G-R-E-T-Z-K-Y.
JUDGE: You may be seated. Go ahead counsel.
[Wayne Gretzky sits.]
16 Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: Are you a good friend of Mr. McSorley?
GRETZKY: Yes, we played hockey together in Edmonton and Los Angeles.
DEFENDANT’S COUNSEL: How long have you known the defendant for?
GRETZKY: Too many years to count.
DEFENDANT’S COUNSEL: How many games have you played with him?
GRETZKY: Probably hundreds.
DEFENDANT’S COUNSEL: Have you ever seen Mr. McSorley intentionally attack another player on the ice?
GRETZKY: Sure, but it was fair checks and the occasional fight.
DEFENDANT’S COUNSEL: So it’s reasonable to expect some physical contact?
GRETZKY: It is hockey. There’s quite a bit of contact and all the players partake in it. It’s not like Mr. Brashear didn’t expect any fighting.
DEFENDANT’S COUNSEL: Have you seen the video of Mr. McSorley hitting Mr. Brashear?
GRETZKY: Yes.
DEFENDANT’S COUNSEL: What would you say happened?
GRETZKY: McSorley was trying to touch Brashear’s body with his stick. He missed and struck his head instead. It was just an unfortunate accident.
DEFENDANT’S COUNSEL: In your opinion, was the incident just part of the game?
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Objection, my Lord/Lady. The witness is not entitled to give his opinion.
[Plaintiff’s counsel sits.]
DEFENDANT’S COUNSEL: Mr. Gretzky has been playing hockey for many years. Surely he would be an
expert on the game.
17Donald Brashear vs Marty McSorley Civll Mock Trial
JUDGE: Objection overruled. Mr. Gretzky is an expert on hockey. You may answer the question.
GRETZKY: Every player knows that they will get into fights; they accept it as part of the game. This incident was no different from the fight between McSorley and Brashear earlier in the game.
DEFENDANT’S COUNSEL: Thank you. No further questions.
[Defendant’s counsel sits.]
JUDGE: Does the plaintiff wish to cross-examine?
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Yes my Lord/Lady. Do you feel that unlimited, unrestricted violence of any sort
should be allowed in the sport of hockey?
GRETZKY: No.
PLAINTIFF’S COUNSEL: Why not?
GRETZKY: The players are there for the game, not to reenact battle.
PLAINTIFF’S COUNSEL: Was what McSorley did an act of unacceptable violence?
GRETZKY: No, it is not something that happens a lot, but it should be allowed.
PLAINTIFF’S COUNSEL: Have you ever hit someone like McSorley did?
GRETZKY: No. I am a small guy and not a fighter.
PLAINTIFF’S COUNSEL: Where do you draw the line between acceptable and unacceptable violence?
GRETZKY: I think an injury that permanently causes damage is unacceptable.
PLAINTIFF’S COUNSEL: My Lord/Lady, that completes my cross-examination.
[Plaintiff’s counsel sits.]
JUDGE: Thank you counsel. Mr. Gretzky, you are excused. You may call your next witness.
[Wayne Gretzky leaves the witness box; defendant’s counsel stands.]
18 Donald Brashear vs Marty McSorley Civll Mock Trial
DEFENDANT’S COUNSEL: We call Don Cherry.
[Don Cherry takes the stand and remains standing for the oath.]
CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?
CHERRY: I do.
CLERK: Please state your full name and spell your last name for the record.
CHERRY: Don Cherry, C-H-E-R-R-Y.
JUDGE: You may be seated. Go ahead counsel.
[Don Cherry sits.]
DEFENDANT’S COUNSEL: Mr. Cherry, what is your background in professional hockey?
CHERRY: I used to be a player and then a coach. Now, I’m a NHL game commentator.
DEFENDANT’S COUNSEL: What do you think of fighting in hockey?
CHERRY: I think hard checking and fights have always been an important part of the game and every player accepts it.
DEFENDANT’S COUNSEL: Did you see the accident between Mr. Brashear and Mr. McSorley on February
21, 2000 in Vancouver?
CHERRY: Yes I did.
DEFENDANT’S COUNSEL: What did you see?
CHERRY: Early in the game I saw Brashear start a fight with McSorley. Brashear won. Later on McSorley tried to get into another fight by attempting to hook Brashear with his stick.
DEFENDANT’S COUNSEL: What happened next?
CHERRY: McSorley hit Brashear on the head, probably by mistake. Brashear went down.
DEFENDANT’S COUNSEL: Did you do anything at that time?
19Donald Brashear vs Marty McSorley Civll Mock Trial
CHERRY: Yes. After the accident I picked up Brashear’s helmet and noticed it could not be properly fastened.
DEFENDANT’S COUNSEL: Was the helmet faulty?
[Plaintiff’s counsel stands.] PLAINTIFF’S COUNSEL: Objection my Lord/Lady. That is a leading question.
[Plaintiff’s counsel sits.]
JUDGE: Sustained. Please rephrase your question counsel.
DEFENDANT’S COUNSEL: Is a helmet that could not be properly fastened standard issue?
CHERRY: No. It would be faulty and extremely dangerous. If it came off, you wouldn’t have any protection.
DEFENDANT’S COUNSEL: Did you see Brashear’s head hit the ice?
CHERRY: Yes.
DEFENDANT’S COUNSEL: Did he have his helmet on?
CHERRY: No.
DEFENDANT’S COUNSEL: Is this incident just part of the game?
CHERRY: It sure is.
DEFENDANT’S COUNSEL: Thank you. No further questions.
[Defendant’s counsel sits.]
JUDGE: Does the plaintiff wish to cross-examine?
[Plaintiff’s counsel stands.]
PLAINTIFF’S COUNSEL: Yes my Lord/Lady. You are in favor of violence and fighting in hockey?
CHERRY: Yes.
PLAINTIFF’S COUNSEL: Any violence?
20 Donald Brashear vs Marty McSorley Civll Mock Trial
CHERRY: Obviously there is a limit.
PLAINTIFF’S COUNSEL: Perhaps when a player gets hit over the head with stick and suffers major
injuries?
CHERRY: It was the helmet.
PLAINTIFF’S COUNSEL: Mr. Cherry, are you an expert on hockey helmets?
CHERRY: No.
PLAINTIFF’S COUNSEL: Then how can you be so sure that it was a faulty helmet and not the force of
the blow?
CHERRY: I’ve seen enough helmets in my lifetime.
PLAINTIFF’S COUNSEL: Are you an expert on injuries to the head?
CHERRY: No.
PLAINTIFF’S COUNSEL: Are you an expert on concussions?
CHERRY: No.
PLAINTIFF’S COUNSEL: My Lord/Lady, that completes my cross-examination.
[Plaintiff’s counsel sits.]
JUDGE: Thank you counsel. Mr. Cherry, you are excused. You may call your next witness.
[Don Cherry leaves the witness box; defendant’s counsel stands.]
DEFENDANT’S COUNSEL: My Lord/Lady, that completes the case for the defendant.
[Defendant’s counsel sits.]
JUDGE: Thank you. Are you prepared to begin closing statements?
[Plaintiff’s counsel and defendant’s counsel both stand.]
DEFENDANT’S COUNSEL: We are my Lord/Lady.
21Donald Brashear vs Marty McSorley Civll Mock Trial
[Defendant’s counsel sits.]
PLAINTIFF’S COUNSEL: Yes, my Lord/Lady. Ladies and gentlemen of the jury. We all understand that
fighting and physical contact are involved in the sport of hockey; however, the severe assault of McSorley against our client Donald Brashear exceeded the highest acceptable limits of violence tolerated in the game. It was clear that McSorley had purposely hit him with a hockey stick from behind. Evidently, McSorley aimed at Brashear’s head.
The injury that kept Brashear out of the Canucks’ lineup for three to four weeks was caused by the blow of the stick to the side of his head. Hitting the ice also made an impact but this was not the cause of the injury.
This act of violence was a precedent setting incident in the National Hockey League. My client was slashed with a hockey stick, with malicious intent and on purpose. The hockey stick was viciously swung at and hit the side of Mr. Brashear’s head. The resulting injury was measured and Mr. Brashear suffered a grade 3 concussion. This caused my client severe misery and caused him to miss some of the hockey season. The defendant was reckless of the consequences of his act and should be found liable for his negligence. He did not exercise reasonable care!
My client is claiming a sum of $750,000.00 in damages. This is for pain and suffering endured from the incident including but not limited to loss of wages for the period of not playing, loss of potential endorsements, intensive doctor care, physical therapy, ongoing pain and suffering, long term side effects, and medicine. We are also asking for court costs.
[Plaintiff’s counsel sits; defendant’s counsel stands.]
DEFENDANT’S COUNSEL: Ladies and gentlemen of the jury, as you all know violence and extreme fighting
are both part of the game of hockey. Donald Brashear has played hockey for many years and he has been involved in hundreds of fights. Brashear has stated that in most of them he has been victorious. Earlier in the game of February 21, 2000 Brashear and McSorley had fought and the fight was started by Brashear.
The hit by McSorley was accidental; McSorley was only trying to spark his team because they were down 4 to 0. McSorley attempted to check Brashear on the upper arm so he could get him to stop and start fighting. The injury happened because Brashear’s helmet was not fastened properly and it was missing padding on the inside. If the helmet was properly fastened I doubt that the concussion would have occurred.
Ladies and gentlemen, even if you find in favor of the plaintiff, you must consider what damages he is entitled to. In my submission, he is not entitled to the amount the plaintiff claims.
22 Donald Brashear vs Marty McSorley Civll Mock Trial
The plaintiff is claiming $750,000. That is an outrageous claim. I suggest that the most he is entitled to is no more than $70,000.
Mr. Brashear was in the hospital for only 2 days and missed a few games. He had no lasting injuries whatsoever and is back playing now. Mr. Brashear would probably not even have had a concussion if he had worn a proper helmet.
[Defendant’s counsel sits.]
JUDGE: Ladies and gentlemen of the jury. You are judges of the facts in this case. You are to determine what the facts are by understanding the evidence of each witness. You must also decide whether the witness is reliable and trustworthy.
You should discuss all issues between yourselves and be prepared to be flexible and tolerant of differing opinions. You must decide this case on a balance of probabilities which means you have to decide which party’s version of the events, the plaintiff’s or the defendant’s, is more probable than the other. Your verdict does not have to be unanimous; any 6 jurors can agree on a verdict.
If you find in favor of the plaintiff you must also decide the amount of money that the defendant must pay the plaintiff.
Were the injuries to the plaintiff caused by the defendant’s negligence, and if yes, at what amount do you assess the total damages the defendant should pay to the plaintiff?
I now ask that you start your deliberations.
[Jury leaves the courtroom for deliberations. Plaintiff, defendant, and counsel stand out of respect for the jury.]
JUDGE: Thank you counsel. We will now adjourn until the jury returns with their verdict.
CLERK: Order in the court. This court stands adjourned for the verdict of the jury.
[Everyone stands while the judge leaves the courtroom.]
*******
CLERK: Order in the court.
[Everyone stands while the judge enters the courtroom.]
JUDGE: You may be seated. Madam/Mister Registrar, has the jury reached a verdict?
[Everyone sits.]
CLERK: They have my Lord/Lady.
JUDGE: Sheriff, please bring the jury in.
23Donald Brashear vs Marty McSorley Civll Mock Trial
[Plaintiff, defendant, and counsel stand out of respect for the jury.]
CLERK: Mr./Madam Foreperson, have you reached a verdict?
[Foreperson stands.]
FOREPERSON: Yes we have.
CLERK: Do you find the defendant, Marty McSorley, liable or not liable for the injuries sustained by the plaintiff, Donald Brashear?
FOREPERSON: We find the defendant, Marty McSorley, liable in negligence for the injuries sustained by the plaintiff, Donald Brashear, and order the defendant to pay the plaintiff damages in the amount of $______________.
OR
We find the defendant, Marty McSorley, not liable in negligence for the injuries sustained by the plaintiff, Donald Brashear.
[Foreperson sits.]
JUDGE: The defendant shall pay the plaintiff damages in the amount of $_________ and also pay the plaintiff’s legal costs.
OR
The case is hereby dismissed. The plaintiff shall pay the defendant’s legal costs.
Ladies and gentlemen of the jury, we thank you for acting as jurors in this matter. Both society and the law benefit from your contribution. In return, I hope you have found it to be an interesting and rewarding experience.
CLERK: This court stands adjourned. Order in the court.
[All rise as the judge exits the courtroom.]
