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Jurors Now Can Participate More, if Judge Allows, but Still May Not Get the Full Story


Recent recommendations to state trial judges in Illinois on how to conduct civil jury trials may result in more information available to jurors through more active participation, but jurors may not be able to find out everything they think they need to know in order to decide a civil dispute.  Following models from other states and the federal court system, Illinois now allows judges the discretion to have jurors submit written questions.  However, jury instructions may still be somewhat confusing and there are some things that jurors will not be allowed to hear or consider in light of the rules of evidence that apply.

For many years now, courts across the country have been considering the problems inherent in the civil jury trial system.   Jurors are sometimes confused by evidence or witnesses, confused by their role and feeling left adrift in attempting to decide issues of liability and damages in cases before them.  To address this, blue-ribbon panels in the federal court system and in leading jurisdictions such as Arizona, have recommended, and in some cases implemented, changes to the jury system to provide jurors clearer instructions on how to do their job and to give them an opportunity to participate more fully in the fact-gathering process in receiving evidence during trial.

Illinois is moving forward as well.  The Illinois Supreme Court Committee on Pattern Jury Instructions in Civil Cases, a preeminent committee of practitioners, judges and law professors serving under the direction of the Illinois Supreme Court, is responsible for helping develop recommended jury instructions to be given to civil juries during the civil case and immediately before or during deliberation.  Last year the Committee recommended adding an instruction to allow jurors to take notes during the trial.  In addition, the general cautionary instructions, typically given at the outset of the trial by the judge to the jury, now include language that allows the trial judge to accept written questions from the jurors for witnesses who appear on the stand, subject to the admonition that not all questions may be asked.  Why?  Because some questions jurors have touch areas where restrictions exist on evidence that may be received by the jurors.  Some questions may ask about evidence that is deemed under the law either not to be relevant to the issues in the case or so prejudicial when weighed against the probative value of the evidence,  it will not be allowed in for consideration.  The new instruction approved for use last year is based on the Supreme Court’s adoption in April of 2012 of Rule 243, which explicitly allows judges to allow jurors to submit written questions to witnesses in civil trials, but provides that the judge has discretion whether to permit questions or not.

Insurance or the availability of insurance to cover medical bills is one of those areas.  Jurors commonly seem in deliberations to be focused on medical insurance as a means of paying for the injured plaintiff’s medical expenses.  However, jurors are not to consider insurance in their deliberations.  Why?  Because the jury should award the full value of the past or future medical expense without taking into consideration insurance under the law, in that the medical insurance carrier who paid the bills is entitled to subrogation or reimbursement for what is recovered.  Also, jurors are not to consider whether the defendant has liability insurance to cover a potential jury verdict, nor will they be allowed to determine the extent of insurance available, though rarely would a plaintiff in a civil case take a matter to trial if there was no insurance available.  There is a specific recommended jury instruction which the trial judge is to give if the issue of insurance comes up during the trial or deliberations, which prohibits the jury from in any way considering the insurance of any form.

Finally, in light of the almost universal appearance of smartphones, tablets and other means of quickly accessing Google, GPS technology, Facebook or other resources electronically, the cautionary instructions given to the jury at the outset of the case have been modified to admonish the jurors from using such internet resources as Google, Wikipedia, Facebook or other sources to check on the parties or the site of the incident or the medicine involved in a case, or to otherwise conduct independent research on issues of liability or damages in the case before them.  The jurors are now instructed to base their decision solely on what the evidence is that is before them in the courtroom.

Jury service remains one of the most important functions a citizen can perform.  It will always be somewhat difficult and may remain somewhat confusing, but ongoing changes in how jurors may interact in civil trials should continue to help the process and make it more efficient and less confusing.