Note to an Old Friend, The Future of Special Interrogatories by Hon. Michael Panter (Ret.)

Dear Special Interrogatories, 

Well, old chum, you’re taking a beating in the legislature this session. You’ve been in our Illinois appellate decisions since 1860. You came from merry olde England where jurors, who were supposed to be knowledgeable, could go to jail if they got the verdict wrong. They had to give reasons for their decisions so they had you. Today, not so much.  

In federal courts you don’t have nearly the same power. Maybe it’s time you hear this already. The truth is, you’re just not that special. 

1.Most jurors get it. Usually, there’s at least one juror who understands that the answer to the special interrogatory has to be consistent with the verdict. If jurors are following the instructions at all, if anyone in the room is, they understand that the special interrogatory only re-asks one of the essential questions they’ve already dealt with. An inconsistent answer to a special interrogatory is infrequent. 

2.When jurors hear their verdict may be negated, they’re not usually happy. If jurors hear their inconsistent answer may negate the verdict, they are usually “displeased.” They feel  they’ve been tricked. That verdict was their decision, dealing with all the law and instructions as best they could. That verdict may now be void because they goofed. In those occasions, most juries would probably prefer to change their answer to the interrogatory rather than change their verdict. Verdicts are otherwise rarely questioned or investigated. 

3.The courts hate them. Talk about inconsistency! The rule is the judge is mandated to give one when tendered. 

However, the rule is also that the judge is not to give a special interrogatory unless it relates to a material issue, unless the response could be inconsistent with the general verdict, and unless it is a single, simple, unambiguous, non-repetitive, non-misleading question based upon evidence related to case issues.  

Guess what?  Many if not most special interrogatories never make it to the jury for one of those reasons. The case law allows very technical grounds for refusal (“Did Plaintiff appreciate the risk of harm” vs “Did Plaintiff appreciate the full risk of harm?”). On review, many are found defective. Courts often refuse to toss general verdicts because the answer is not absolutely irreconcilable. In federal courts they’re only discretionary and the jury learns what their answer means. 

4.We’re inconsistent in what we tell jurors. We tell our juries they are not to give more weight to one over another instruction. Then we test them by asking if they’ve really read one or two of the “important” ones. We’re just picking out a few they might get wrong. We might as well re- ask them about each point separately. “Was sympathy any basis of your decision?" 

5.What actually might make some sense. Everybody agrees there are too many instructions. Everybody agrees instructions are too legalistic and complicated. Everybody agrees jurors have difficulty with them. We really need a better way. 

What if the verdict form were more in the style of a tax form? Note, I say “in the style”. I’m not suggesting jurors should have more stuff.  But the format might make sense. 

The verdict could be a series of five or ten questions that the jury must answer. Do you find the defendant was negligent, yes or no? If no, skip to line 14 and write, not guilty. Do you find that the plaintiff was contributorily negligent, yes or no? Do you find that the plaintiff was damaged, yes or no? Do you find that the defendant’s negligence was a proximate cause of the plaintiff’s damages, yes or no? Do you find that the plaintiff’s contributory negligence was a proximate cause of his or her damages, yes or no? And so on. 

One master verdict form might contain the so-called definitions now found in other instructions (some of which are not so helpful). It could replace some instructions and give the jury less to deal with. The judge could still read and explain them. The attorneys could still argue them as they want.  

And while on the subject, why even use the technical terms? Why not simply ask, “Do you find the defendant failed to act as an ordinary reasonable person under similar circumstances?” Why introduce lawyer words like, “negligence” or “proximate cause”, etc.? 

Of course, asking more questions creates the possibility of more inconsistencies. If that’s the worry, it could be dealt with by pointing out the inconsistency to the jury and giving them the chance to choose which they meant.  

I’m not necessarily saying that one master verdict form is a better solution. However, re-asking a few of the same questions which we instruct the jury to answer on their path to a verdict just doesn’t make a lot of sense. Either we trust our juries or we don’t.  

In conclusion, Dear Special Interrogatories, you’re not looking like a particularly good investment these days. I’m not urging people to rush out and buy you. Lawyers are there to argue the law and the facts. If they do their job, they just don’t need you. 

Maybe we can find work for you in the election booths. “Did you really mean to vote for that boob?”