Illinois Supreme Court Decision Proves The Wisdom Of Using Appellate Counsel At Trial

April 17, 2019 / Writing and Speaking


The authors of this Sidebar have long advocated the wisdom of using appellate counsel at trial, not only to preserve error for appeal, but to help ensure a defense verdict. A recent Illinois Supreme Court decision proves again that wisdom with respect to the expertise of appellate counsel in carefully drafting special interrogatories, which as this decision shows, was crucial to a defense victory. Stanphill v. Ortberg, 2018 IL 122974.


Stanphill involved a wrongful death action arising from the suicide of plaintiff’s decedent. Plaintiff sued a clinical social worker (Ortberg) for professional negligence in failing to diagnose that decedent was suicidal. During the instructions phase of the jury trial, defendant proffered a special interrogatory to test the jury’s general verdict, which read: “Was it reasonably foreseeable to Lori Ortberg on September 30, 2005 that Keith Stanphill would commit suicide on or before October 9, 2005?” The jury entered a general verdict for plaintiff awarding $1,495,151 but answered “No” to the special interrogatory. Because of the negative answer to the special interrogatory, the trial court entered judgment in favor of defendant and against plaintiff.

Decision-Plaintiff Wins

The Supreme Court ruled that the jury’s answer to the special interrogatory was of no effect and did not wipe out plaintiff’s verdict because it was in the wrong form. Special interrogatories test an element of the plaintiff’s cause of action. The Stanphill Court found that this interrogatory was given to test the legal cause aspect of proximate causation. Legal cause is established only when an injury—in this case, decedent’s suicide—is “reasonably foreseeable” and is an objective not a subjective test. But the defendant’s special interrogatory was phrased in the “subjective” and not the “objective” because it asked whether decedent’s suicide was reasonably foreseeable to Ortberg rather than “a reasonable social worker.” Accordingly it was not in proper form, and the jury’s negative answer favoring defendant had no effect on the jury’s general verdict for plaintiff. The bottom line: plaintiff’s verdict was reinstated.

Learning Point: It might seem like a small point … using “Lori Ortberg” instead of “a reasonable social worker” … in the special interrogatory, but that small difference made all the difference in the world between getting a defense win or a plaintiff’s verdict. In all likelihood, had the interrogatory been phrased in an objective way, the jury would have still answered it “No” insuring a defense win. These are the “little” but essential points that more than pay for the added costs of having appellate counsel assist at trials. In fact, using appellate counsel at trial can no longer be viewed as a luxury, but today should be viewed as a necessity. The Standphill case shows why.

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