INSTRUCTING THE JURY

Judge Lynn M. EganJudge Michael Panter

May 31, 2013

SUPREME COURT RULE 239(d)Instructions before opening

statements.

“After the jury is selected and before opening statements, the court may orally instruct the jury as follows:

(ii) On the substantive law applicable to the case, including but not limited to the elements of the claim or affirmative defenses.”

PRELIMINARY CAUTIONARY INSTRUCTIONS

IPI 1.01 [9] & [10] No social networking or electronic devices

IPI 1.01 [15] Explanation & procedure for jurors asking questions (S.Ct.Rule 243)

NOTES ON USE

1.01 [9] & [10] should be repeated throughout the trial

1.01 [15] should be given at the beginning of the trial

FREQUENTLY OVERLOOKEDIPI 3.03 Insurance Benefits

“If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.”

735 ILCS 5/2-1205

Reduction in the Amount of Recovery

“Section 2-1205 represents an exception to the collateral source rule…” Perkey v. Portes-Jarol, 2013 IL App (2d) 120470.

SUPREME COURT RULE 239

“Whenever IPI contains an instruction applicable in a civil case….the IPI instruction SHALL be used, unless the court determines that it does not accurately state the law.”

“SHALL” = MUST

“SHALL” ≠ APPROVED

“There has not been any advance approval of the IPI by this court. An instruction is approved or rejected ONLY after it has been judicially questioned and considered.”

Powers v. Illinois Central Railroad Co., 91 Ill.2d 375, 385 (1982)

MANDATE FOR ALL INSTRUCTIONS:

Simple

Brief

Impartial

Free from argument

GUIDELINES FOR NON-PATTERN INSTRUCTIONS:

• Avoid the temptation to simply quote Appellate language

• Don’t define commonly used words• Ensure individual accuracy AND

cumulative effect• Beware the source!

JURY INSTRUCTION DON’Ts:Don’t tell the jury NOT to do something

Don’t use instructions that single out particular evidence

Don’t use instructions that are appropriate only in exceptional cases

Don’t use a lot of overly specific instructions

OBJECTIONSSUPREME COURT RULE 239(b):

“…objections SHALL be particularly specified” at the instruction conference.

(“SHALL” = MUST)

**ALSO: Tender a remedial version

PRACTICAL TIPSTender instructions 30 days in advance of trialAsk judge on day 1 when instructions conference

will be heldNumber your instructions (in addition to IPI

designation)Obtain a ruling on every instructionMake sure modifications & corrections are made &

noted on the record before closing argumentsBring a disc with the instructions

OOPS…

Don’t let mistakes go uncorrected.

Know the procedure for correcting an erroneous instruction.

Osman v. Bellom Construction Co., 53 Ill.App.2d 67 (1964).

SPECIAL INTERROGATORIES

INSTRUCTIONS DURING DELIBERATIONS

735 ILCS 5/2-1107:

“The court shall give instructions to the jury only in writing…”

“The court shall in no case, after instructions are given, clarify, modify or in any manner explain them to the jury, otherwise than in writing…”

DUTY TO ANSWER QUESTIONS

“…the court has a duty to provide instruction to the jury when [it] has posed an explicit question or requested clarification on a point of law…” People v. Millsap, 189 Ill.2d 155 (2000).

The duty applies to both civil & criminal casesEven if the jury was properly instructedMerely referring jurors back to original instructions

may be an abuse of discretion as this may amount to “no response at all.” Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill.App.3d 165, 173 (4th Dist., 1997).

CAUTION

No new theories or charges

No response that effectively directs the verdict

PROPER PROCEDURE FOR ANSWERS

All questions should be submitted in writing

The court should immediately notify counsel

Substance of the note should be placed on the record in counsel’s presence

Opportunity for discussion/objection by counsel

Make a record of the proposed answerProvide answer to the jury in written

form

STANDARD OF REVIEW

SHOULD the court have answered the question? Abuse of discretion standard.

IF ANSWERED, was the response correct? De novo review.

EX PARTE COMMUNICATIONS

“For many years, it was a strict rule that any ex parte communication whatsoever by the judge or a third person…was plain error” even if “no improper motive or effect on the jury regardless of the response or instruction…or whether actual prejudice was demonstrated.”

People v. Childs, 159 Ill.2d 217, 227 (1997)

EX PARTE EVOLUTION“…the rule has judicially evolved”A jury verdict will no longer be set aside

where it is apparent that no injury or prejudice resulted. People v. Childs, supra at 217-218.

Instructive Example

See People v. McLaurin, 382 Ill.App.3d 644 (1st Dist., 2008) reversed 235 Ill.2d 478 (2009)

SAMPLE QUESTIONS

Q: “Were medical expenses covered by insurance?”

A: None.

RESULT: Reversed. Failure to tender IPI was error. Hojek v. Harkness, 314 Ill.App.3d 831 (1st Dist., 2000).

SAMPLE QUESTIONSQ: “For medical bills: Who paid the $50,935.48

in medical bills (plaintiff/insurance)?”A: “You have received all the evidence &

instructions in this case. Please continue to deliberate until you reach a verdict.”

RESULT: Reversed. “…there was a duty to answer…” Baraniak v. Kurby, 371 Ill.App.3d 310, 316 (1st Dist., 2007).

SAMPLE QUESTIONS

Q: “Was Dr. Adeli a resident or an attending physician at the time of plaintiff’s surgery?”

A: “There is no sworn testimony on that point.”

RESULT: Affirmed. “Refusing a request for material not in evidence does not constitute error.” Schiff v. Friberg, 331 Ill.App.3d 643, 659 (1st Dist., 2002).

SAMPLE QUESTIONSQ: Med mal jury sent out 3 notes, 2 of which

“involved the unanimous nature of jury verdicts.”A: The judge declined to read 2 of the 3 notes to

the attorneys because they reflected the jury split.

RESULT: Affirmed – but only due to waiver & failure to demonstrate prejudice. “The preferred method is to allow counsel access to all jury inquiries, even if they reveal the temporary disposition of the jurors towards a cause at issue.” Wodziak v. Kash, 278 Ill.App.3d 901, 914 (1st Dist., 1996).

SAMPLE QUESTIONSQ: In premises liability case, jury advised the bailiff it

had a question about Verdict Form B, which allowed a verdict for plaintiff, but reduced the award by plaintiff’s comparative fault.

A: Without notice to the attorneys, the judge entered the jury room & orally instructed the jury that “you have to stop at 50%.”

RESULT: Reversed. “The trial judge had an unauthorized ex parte communication with the jurors during their deliberations about a crucial issue in the case…” Wolfe v. Menard, Inc., 364 Ill.App.3d 338 (2d Dist., 2006).

JUDGES’ FAVORITE LEGAL CONCEPTS

Abuse of discretion standard applies to claims of trial court error

Application of the “plain error” rule is “exceedingly rare & limited to circumstances amounting to an affront to the judicial process.”

Palanti v. Dillon Enterprises, 303 Ill.App.3d 58 (1st Dist., 1999)

CIRCUIT COURT WEBSITE

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