Over the course of my career as a trial lawyer, the importance of jury instructions became increasingly clear. Then, as a judge, I read them until I had them pretty well-memorized. Now I love presenting on them and showing lawyers how to think of them in strategizing their cases. Here are two thoughts — one for each side.
Has anyone else noticed that the Illinois Pattern Jury Instructions provide no line for funeral expenses in wrongful death cases? Funeral expenses have specifically been allowed since Saunders v. Schultz, 20 Ill. 2d 301 (1960), when the Supreme Court generally allowed actions for damages for the death of a human being.
The court considered decisions from around the country to reach that then-novel conclusion.
Medical expenses; lost income; loss of money, goods and services; and loss of society are all provided for in the instructions. Customarily, we insert a new line or insert the words “and funeral” into the existing line for medical bills.
But does that lack of a line give defendants anything to talk about? Usually funeral bills are the least valuable part of death case damages and hardly worth contesting, but is there a ground to contest them?
In the case of the death of a child who had an otherwise normal life expectancy, the parents pay the funeral expenses and it seems fair and reasonable that they should be able to claim those expenses as an element of damages.
Now consider the death of an elderly or sick parent with a life expectancy of just a few years. It may be a liability case, but do the defendants owe funeral expenses for someone expected to die in a few years in any event? This could be a common issue in nursing home cases.
The plaintiff should certainly be able to claim economic damages like medical bills and wage loss and money, goods and services. The plaintiff should be able to claim noneconomic damages both in the survival case, for pain and suffering and loss of a normal life and in the death case for loss of society and grief and sorrow.
But the actual economic loss for funeral expenses may only be the lost opportunity costs of having the money for the several years before it would have had to be paid out anyway. The defendant’s negligence may have shortened decedent’s life and accelerated the economic cost of a funeral, but that expense would have been needed regardless.
Your trial judge will probably give the jury a verdict form asking for funeral bills. That doesn’t stop you from arguing to the jury that the request for funeral bills is a good example of the damages the plaintiff is requesting which have no connection to the defendant’s alleged negligence.
Funeral bills should not be awarded, your argument would go, nor should any of the other damages, because the plaintiff cannot prove causation.
One for the plaintiffs
Have you ever gotten into an argument about whether you get a line for pain and suffering because there is no showing that it was conscious pain? A patient in a coma may not be allowed to seek pain and suffering because there is no showing he was conscious. Exactly what that means and how it is proven have been debated and analyzed in case law. Spikes in blood pressure or pulse or temperature or EKG readings may evidence pain.
However, there may be a better path. And, typical in trial work, lawyers fight so hard on one point that they overlook the bigger picture. Instead of arguing about whether the plaintiff feels pain, a plaintiff could argue that his client could not feel pain. He could not feel anything. He could not move any of his limbs. He could not speak. He could not taste food. He could see nothing. He could not respond in anyway. The thousand things he loved to do while alive and conscious, he no longer can. That’s called loss of a normal life — the loss of everything the plaintiff was able to do before defendant’s negligence — and it is compensable. And there’s a line for it.
The jury instructions give lawyers so many ways to argue that they need to be reviewed carefully in every case and used in pleadings, depositions and throughout the trial.
If you read them with a fresh eye for each new case, you may see new (and more effective) ways to put them to use.