INSTRUCTING THE JURY
Judge Lynn M. Egan
Judge 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 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…” 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
instructions
a
lot
of
overly
specific
OBJECTIONS
SUPREME COURT RULE 239(b):
“…objections SHALL be particularly
specified” at the instruction conference.
(“SHALL” = MUST)
**ALSO: Tender a remedial version
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
OOPS…
 Don’t let mistakes go uncorrected.
 Know the procedure for correcting an
erroneous instruction.
Osman v. Bellom Construction
Ill.App.2d 67 (1964).
Co.,
53
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 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).
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 answer
 Provide 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 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…”
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 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.” Wodziak v. Kash,
278 Ill.App.3d 901, 914 (1st Dist., 1996).
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
unauthorized ex parte communication
jurors during their deliberations about
issue in the case…” Wolfe v. Menard,
Ill.App.3d 338 (2d Dist., 2006).
had an
with the
a crucial
Inc., 364
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
www.cookcountycourt.org
Click on “Judges Information”
Go to page for Judge Lynn M. Egan
Click on tab “Seminar Materials”