'Special interrogatories' bill advances in Senate Judiciary; Arbitration bill stalls

By Record News | May 3, 2019


Larry Rogers and Don Eckler  

SPRINGFIELD – The Senate judiciary committee on May 1 advanced a bill to limit the use of questions that test whether jurors understand their instructions. 

House Bill 2233 would grant judges discretion over such “special interrogatories,” replacing law that requires judges to send them to juries. 

Committee chair Sen. John Mulroe (D-Chicago) said if a jury renders a verdict inconsistent with its response to a special interrogatory, the jury is wrong. 

He said the bill would allow argument, and a jury would get back to work. 

Illinois Trial Lawyers Association witness Larry Rogers, of Power Rogers and Smith in Chicago, said a wrong answer negates the hard work of a jury. 

Rogers said no one can explain an interrogatory to a jury. He said that when jurors render a verdict and an interrogatory changes the result, jurors feel hoodwinked. 

He said the bill started as repeal of the special interrogatory statute, and that after discussions with insurers and doctors, they turned neutral, such as the city of Chicago turned neutral. 

He said a compromise moved the bill from repeal to judge’s discretion. 

Illinois Association of Defense Trial Counsel witness Donald Eckler, of Pretzel Stouffer in Chicago, said advising a jury would render a trial unfair. 

The bill would mistake jurors from finders of fact to finders of law, he said. He also said it would be unfair to both plaintiffs and defendants. 

“A jury doesn’t enter judgment,” Eckler said. “A judge does.” 

He said special interrogatories have been law for most of Illinois history - codified in 1887 - and they aren't a tool exclusively for defendants.

“It’s the only tool that gets at specific issues in the case,” he said. 

Mulroe asked if he agreed that it causes confusion in the jury. 

Eckler said, “If so, the instructions weren’t clear.”

He said a party might ask multiple interrogatories, and that they mostly relate to proximate cause and affirmative defenses. 

Mulroe asked what harm it would cause to explain them, and Eckler told him the Supreme Court said it would defeat their purpose. 

Rogers said they seek to create inconsistencies, adding that the question has already been answered. 

He said it’s important to trust the judiciary and trust jurors to resolve disputes.

Sen. Michael Hastings (D-Frankfort) asked Eckler if interrogatories dated from the 16th Century, and Eckler said they did. 

Eckler said a judge gets to decide if a verdict did what it should.

Hastings asked if it has to be simple and unambiguous. 

Eckler said it’s required to be. 

Rogers said they do it to raise appellate issues. 

Eckler said questions often involve issues of agency and are very important in cases with underlying insurance disputes. 

Without them, he said, “You have to try the case again for the insurer.” 

Hastings said, “Is this about your legal fees?” 

Eckler said if it was, he’d support the bill. 

“There’s nothing a defense lawyer likes better than trying a case twice,” Eckler said. 

He said a jury’s role is to find facts, not enter judgment. 

“If you want to talk about things juries aren’t told, I could spend the whole evening talking about that,” Eckler said. 

Rogers said, “It’s like an extra credit question after you’ve passed the test.” 

Sen. Jason Barickman (R-Bloomington) asked Eckler how other states do it, and Eckler said special interrogatories are law in 48 states and U.S. courts. 

Rogers said judges can’t deny them if they’re in proper form. 

Eckler said answers must be unanimous. 

Four times in the hearing, Rogers described the questions as innocuous. 

Four times, Mulroe described the effects as chaos and confusion. 

Mulroe and fellow Democrats Rachelle Crowe (D-Wood River), Hastings, Ann Gillespie (D-Arlington Heights), Elgie Sims (D-Chicago), Don Harmon (D-Oak Park), and Toi Hutchinson (D-Chicago Heights) voted for the bill. 

Republicans Barickman, Paul Schimpf (R-Murphysboro), and Jil Tracy (R-Quincy) opposed it. 

Mulroe scratched from the agenda a bill to prohibit arbitration clauses in employment contracts, pending an amendment. 

Committees must finish their work by Friday, May 10.

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