Using The Special Interrogatory In Illinois Civil Jury Trials—A Plan Of Action

April 23, 2020 / Uncategorized

Introduction

The plaintiff ’s bar—especially the plaintiff’s personal injury bar—has been clamoring for years in Illinois to abolish the special interrogatory. Plaintiff’s lawyers don’t like the special interrogatory because it places a much needed check on a jury’s rendition of a general verdict. But now that Illinois has a Democratic Governor, plaintiffs’ lawyers got their wish to do away with the special interrogatory. Although it still lives on in name by statute, the statute permits the trial judges to exercise almost unbridled discretion in refusing defense requests for special interrogatories. We are recommending a “plan of action” to deal with this situation in your trials occurring in Illinois state courts.

Analysis

The Previous Special
Interrogatory Law

The Illinois Code of Civil Procedure regarding special interrogatories as it then existed prior to January 1, 2020 and as construed by Illinois courts provided that a trial court had no discretion to refuse a special interrogatory in the proper from, and a trial court’s refusal to give such a proper special interrogatory could constitute reversible error. McGovern v. Kaneshiro, 337 Ill. App. 3d 24, 30 (2003). Illinois courts viewed special interrogatories as guardian of the integrity of a general verdict in a civil jury trial. It tested the general verdict against the jury’s determination as to one or more specific issues of ultimate fact. A special interrogatory was in proper form and had to be given if (1) it related to an ultimate issue of fact in the cause of action such as, for example, causation, and (2) an affirmative answer response would be inconsistent with any general verdict returned. In several cases involving personal injury actions, this would require the trial court to disregard the general verdict for the plaintiff and enter judgment for the defendant upon the special interrogatory. Further, on appeal, a trial court’s refusal to give a special interrogatory in proper form was reviewed de novo by the reviewing court, meaning the reviewing court was not bound by the trial court’s decision.

The Current Special
Interrogatory Law

As of January 1, 2020 all this has now changed in Illinois. The “new” plaintiff’s personal injury bar special interrogatory law now provides that:
— the trial court has the sole discretion to give or refuse to give a special interrogatory;
— on appeal, the trial court’s refusal to give a special interrogatory is limited to whether the trial court abused its discretion meaning that, unlike with de novo review, the reviewing court cannot substitute its judgment for that of the trial court;
— if the answer to the special interrogatory is irreconcilable with the general verdict, the trial court must tell the jury to further deliberate and consider its answer and the general verdict; and — if the jury cannot render consistent answers to the general verdict and special interrogatory, the trial court must order a new trial. — if the jury cannot render consistent answers to the general verdict and special interrogatory, the trial court must order a new trial.

Further under the “new” law, plaintiff’s counsel can tell the jury during closing argument what may result if its answer to the special interrogatory is inconsistent with the general verdict, meaning the plaintiff’s lawyers get to tell the jury that unless it answers the special interrogatory the plaintiff’s way, plaintiff will get nothing from the trial.

A Recommended
Plan Of Action

Some might view this new law as effectively killing the use of the special interrogatory in Illinois personal injury litigation. But our appellate team believes that the special interrogatory can still play a vital role in defending against the rendition of plaintiff’s PI verdicts. A new trial is still better for the defense than a plaintiff’s verdict. Accordingly, we recommend this plan of action in dealing with this new law.

First, your defense trial counsel should be instructed to ask for special interrogatories whenever the demands of their jury litigation call for the use of such interrogatories. In tendering the special interrogatory, courts should be urged to continue applying the existing case law that has developed in accepting or refusing a special interrogatory. Thus, it is crucial that special interrogatories are tendered to the trial court in the proper form. And “proper from” means: the question concerns an ultimate issue of fact and the answer would be inconsistent with the general verdict. A good example here is a special interrogatory concerning causation as illustrated in Snyder v. Curran Twp., 281 Ill. App. 3d 56 (1996), where the Court found this interrogatory to be in proper form and for the reasons given:

(The) special interrogatory stated as follows: “On the date of the accident and at the time and place of the accident in question in this case, was the driving conduct of the plaintiff, Norma Snyder, the sole proximate cause of the accident?” In our view, this special interrogatory presented a single and direct question; its terms are simple, understandable, and unambiguous; it is not misleading or repetitive; and a positive response to it would control an inconsistent general verdict by the jury in favor of the plaintiff.

Second, if the trial court refuses a special interrogatory that is in the proper form as guided by prior decisional law, instruct your defense counsel to ask for written reasons on the record by the trial court for refusing such a properly formulated special interrogatory. There should be more reasons than just a trial judge’s personal feeling that “I don’t like them”. Certainly, a judge should not be able to refuse a special interrogatory because he is philosophically opposed to special interrogatories. That is arbitrary—a rule of man, not law. Thus, asking for such written reasons on the record may make the trial judge more circumspect about his/her denial of a properly formulated special interrogatory, and “flip” refusals that “I just don’t think it’s called for in this case” may give appellate counsel better arguments to call the trial judge’s decision an abuse of discretion.

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