Current Illinois Jury Instruction Regarding Professional Negligence Is Problematic For Defense Bar
December, 2008
by Thomas H. Ryerson and
Introduction
Defense lawyers are currently in a precarious position because the Illinois Appellate Court is split over the appropriate jury instruction to give with respect to the determination of professional negligence. Under the current version of the Illinois Pattern Instructions, jurors may be led to believe that they can use their own personal experiences or knowledge in determining what constitutes professional negligence. Appellate courts have issued opinions both supporting the current version and opinions stating that the current instruction is not an accurate statement of the law and that trial courts can use a hybrid instruction that combines portions of the 2005 instruction with portions of the 2006 instruction. Thus, defense lawyers will not know until the jury instruction phase of the trial which approach their trial court will follow.
Analysis
The 2006 Illinois jury instruction regarding professional negligence advises the jury that the law does not say how a reasonably careful professional would act and that it is for the juror to decide. As a result, a juror could be led to believe that they are free to use their own personal knowledge or experiences in determining the appropriate standard of care. In Smith v. Martin, 880 N.E.2d 1023 (Ill. App. 3d Dist. 2008), the Illinois Appellate Court, Third District, recognized this potential problem and used a hybrid instruction that combined parts of the 2005 version of the instruction with the 2006 version. The instruction in Smith advised the jury that it must not attempt to determine professional negligence from any personal knowledge.
In a First District appellate decision, the court held that trial courts are required to use the current instruction and that a failure to do so is plain error. LaSalle Bank, NA v. C/HCA Development Corp., 893 N.E.2d 949 (Ill. App. 1st Dist. 2008).
Another first district appellate court decision disagreed with LaSalle Bank and held that the entire version of the 2006 instruction is not an accurate statement of the law. Matarese v. Buka, 897 N.E.2d 893 (Ill. App. 1st Dist. 2008). In Matarese, the appellate court held that the jury needed to be instructed that they must decide how a reasonably careful professional would act based on expert witnesses presented at trial.
Learning Points
The Illinois Supreme Court has yet to rule on the appropriateness of the 2006 version of the professional negligence jury instruction. Therefore, defense lawyers cannot know whether a trial court will give the 2005 version, the 2006 version or a hybrid of the two. Defense attorneys in Illinois are disadvantaged by this uncertainty because it will affect how they prepare their closing arguments. Moreover, they will not know which instruction will be given until immediately before their closing argument. Given the split in the appellate court, defense counsel should have a proposed jury instruction as to professional negligence based on either the 2005 version or a hybrid version combining the 2005 and 2006 instruction and the above-cited case law as authority to support a ruling in favor of not simply using the 2006 version of the instruction.
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