The Trial Practice Tips Weblog

Making Jury Instructions Easy to Understand

Free to download: "Communicating with Juries: How to Draft More Understandable Jury Instructions," by Peter Tiersma of Loyola Law School Los Angeles.

According to Raymond Ward at the (new) legal writer, "If you’re a trial judge or trial lawyer, you need to read it."

Reminder: New Illinois Jury Instructions Can Be Found Online

The Illinois Courts website contains "recent instructions, not yet contained in the Illinois Pattern Jury Instructions bound volumes, drafted by the Supreme Court Committee on Jury Instructions in Civil Cases."

You'll find the new instructions at Recent Civil Jury Instructions, where you can also sign up for email notification whenever a new instruction is approved.

Illinois Lawyers: Update Your Instruction Book Online

The website of the Illinois Courts contains a page called Recent Civil Jury Instructions that contains "recent instructions, not yet contained in the Illinois Pattern Jury Instructions bound volumes, drafted by the Supreme Court Committee on Jury Instructions in Civil Cases." It's one of the only methods for updating your bound volumes of Illinois instructions.

The page currently lists 23 instructions, including instructions concerning punitive damage, apportionment of fault, and wrongful death.

Related post: "Read Jury Instructions Early and Often"

Lawyers Who Share Their Expertise for Free

The lawyers at Miller & Zois, LLC don't have a weblog, but they're participating in the open-source lawyering movement anyway by sharing information on the Attorney Help Center page of their website. Here's their thinking--

The purpose of this Maryland Personal Injury Attorney Help Center is to serve as a resource for Maryland personal injury attorneys and other lawyers around the country representing injury victims. As we looked at personal injury sites on the Internet, we noticed that while many sites are good at talking about themselves and the types of personal injury cases they handle, few provide real information of assistance to injured victims or other personal injury lawyers.

At the Attorney Help Center, you'll find sample pleadings, motions, discovery, jury instructions, and more. An example of what's offered is "Plaintiff's First Request for Admissions," a comprehensive set of requests for admissions in a vehicle injury case that would work as a model in most states.

New Illinois Instructions Online

You can find eight new jury instructions on the Circuit Court of Illinois website.  Thanks for the heads up to Helen Gunnarsson, who writes the Illinois Trial Practice Update that's sent to Illinois lawyers who subscribe.  (Information here.)

According to the Circuit Court of Illinois website, the new and updated instructions will appear there only until they are transferred to "bound volumes."  According to one lawyer who reads this weblog, however, some previous instructions disappeared from the court's website before being transferred. He was put in a position of knowing that there was a new instruction, but not being able to find it.  (As I recall the Illinois Supreme Court was closed for the weekend, so he couldn't call on the phone to ask about the problem.)

To avoid this sort of problem, you might want to print out the new instructions as a precaution and put them into the back of your instructions book.

Read Jury Instructions Early and Often

It always makes sense to look at jury instructions at the beginning of a case. In drafting a complaint, plaintiffs' lawyers will learn what evidence they will need to plead and prove in order to get to a jury. Defense lawyers will learn ways of preventing this that might not have been obvious until they took a look at the instructions. (Reminder: Some of the Illinois Pattern Instructions are online.)

The Illinois Pattern Instructions also include information about Illinois substantive law that can be helpful to know at all stages of the trial-preparation process.

Instructions: Aggravation of Pre-Existing Injury

According to Illinois Pattern Instruction (IPI) 30.03, the "aggravation of any pre-existing ailment or condition" is a separable element of compensable damages under Illinois law. However, as the comment to IPI 30.03 notes, the First District disagrees about this, as evidenced by Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st Dist. 1994).

In Luye v. Schopper, No. 1-02-0610 (1st Dist. 2004), the First District reconsidered the Smith holding and reaffirmed it, stating that IPI 30.03 misstates the law and should not be used:

In Smith, the appellate court determined aggravation of a preexisting condition did not constitute a separate element of damages because it would overcompensate plaintiffs due to the overlap of aggravation of a preexisting injury with awards for other elements of damages. Smith, 260 Ill. App. 3d at 935-36. The Smith court held that although the aggravation of a preexisting injury should be taken into account in awarding damages, it was error for the trial court to give the jury an instruction and itemized verdict form with aggravation of a preexisting condition as a separate element of damages. Smith, 260 Ill. App. 3d at 935.

IPI 30.03 remains viable in some other districts; be sure to conduct your own research before using this instruction (or objecting to its use).

Changes to Illinois Pattern Instructions Now Online

From an Illinois Supreme Court press release:

Lawyers, judges and librarians will now have ready access to recent changes in proposed jury instructions for civil cases. No longer will they have to wait until advance sheets or periodic volumes are formally published and distributed.

. . . Recent changes in the instructions which are drafted by the Supreme Court Committee on Jury Instructions in Civil Cases will be available on the Illinois Supreme Court web site under the section headed "Circuit Court of Illinois", "Jury Information", "Jury Instructions."

Here is the link to the Supreme Court's press release (pdf format). The Supreme Court has already posted changes to the Construction Negligence, Strict Liability, and other instructions, which you can view here.

Thanks to the ISBA Illinois Trial Practice Update, from which I originally learned this news.

Missing Witness Instructions

Here's a new case from the Second District, granting a new trial to the plaintiff whose missing witness instruction was refused by the trial court: Kersey v. Rush Trucking, Inc.

The court summarized the elements necessary for the missing witness instruction as follows:

The instruction should be given only when a foundation is presented which suggests that: (1) the witness or evidence was under the control of the party to be charged and could have been produced by reasonable diligence; (2) the witness or evidence was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the evidence or the witness's testimony would have been favorable to him; and (4) no reasonable excuse for the failure to offer the evidence or to produce the witness has been shown.