INSTRUCTING THE JURY

1. INSTRUCTING THE JURY Judge Lynn M. Egan Judge Michael Panter May 31, 2013

2. 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.”

3. 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

4. FREQUENTLY OVERLOOKED IPI 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…” Perkeyv. Portes-Jarol, 2013 IL App (2d) 120470.

5. 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

6. “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)

7. MANDATE FOR ALL INSTRUCTIONS: • Simple • Brief • Impartial • Free from argument

8. 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!

9. 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

10. OBJECTIONS SUPREME COURT RULE 239(b): “…objections SHALL be particularly specified” at the instruction conference. (“SHALL” = MUST) **ALSO: Tender a remedial version

11. PRACTICAL TIPS • Tender instructions 30 days in advance of trial • Ask judge on day 1 when instructions conference will be held • Number your instructions (in addition to IPI designation) • Obtain a ruling on every instruction • Make sure modifications & corrections are made & noted on the record before closing arguments • Bring a disc with the instructions

12. OOPS… • Don’t let mistakes go uncorrected. • Know the procedure for correcting an erroneous instruction. Osmanv. Bellom Construction Co., 53 Ill.App.2d 67 (1964).

13. SPECIAL INTERROGATORIES

14. 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…”

15. 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 cases • Even if the jury was properly instructed • Merely 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).

16. CAUTION • No new theories or charges • No response that effectively directs the verdict

17. 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 answer • Provide answer to the jury in written form

18. STANDARD OF REVIEW • SHOULD the court have answered the question? Abuse of discretion standard. • IF ANSWERED, was the response correct? De novo review.

19. 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)

20. 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)

21. SAMPLE QUESTIONS Q: “Were medical expenses covered by insurance?” A: None. RESULT: Reversed. Failure to tender IPI was error. Hojekv. Harkness, 314 Ill.App.3d 831 (1st Dist., 2000).

22. SAMPLE QUESTIONS Q: “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…” Baraniakv. Kurby, 371 Ill.App.3d 310, 316 (1st Dist., 2007).

23. 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).

24. SAMPLE QUESTIONS Q: 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.” Wodziakv. Kash, 278 Ill.App.3d 901, 914 (1st Dist., 1996).

25. SAMPLE QUESTIONS Q: 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).

26. 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.” Palantiv. Dillon Enterprises, 303 Ill.App.3d 58 (1st Dist., 1999)

27. CIRCUIT COURT WEBSITE www.cookcountycourt.org • Click on “Judges Information” • Go to page for Judge Lynn M. Egan • Click on tab “Seminar Materials”