As published in The Chicago Daily Law Bulletin
I clearly remember that bright day, after law school, when my former roommate, Jim Costello, introduced me to the Illinois Pattern Jury Instructions.
I clearly remember that bright day, after law school, when my former roommate, Jim Costello, introduced me to the Illinois Pattern Jury Instructions.
Regular readers know I’ve learned the IPI to be one of the most important tools for lawyers preparing for trial or settlement. The IPI must be reviewed anew for every serious case. Consider these thoughts:
IPI 15.01—I’ve written on this before but, as it keeps coming up, an expert who merely opines something was not a “direct” cause of the injury is not really helping. He or she must say it was not even a cause, direct or indirect, as the instruction makes no such reference.
IPI 21.01—Burden of proof, more probably true than not true. For years I thought the most important word in this instruction was “more.” That’s the typical “feather” argument plaintiffs make when they do the thing with their hands trying to show a slight tip of the scales of justice. By the way, I once saw a lawyer bring in an actual scale and I thought it worked well.
Now I wonder if there is really any difference between, “more probably true than not true” and just plain “probably”. Can a plaintiff get up in closing and say, “Ladies and Gentlemen, here’s what probably happened”?
In actual experience, lawyers don’t say that explicitly but they do find other ways to say the same thing. “Whose testimony is more likely?”
Note: Never use the word “preponderance” of the evidence. Although found in the comments, it’s not in the instructions and the jury will never hear it. Big, undefined words don’t help you. One juror’s note asked the meaning of the “ponderosa” of the evidence (like from the old TV show Bonanza). Stick to the actual language of the instructions.
Note also that a witness cannot normally testify to what he or she “probably” did, for example, probably stopped at the red light, unless they can say it is their invariable practice.
Finally, arguing some special emphasis to “persuaded” (how did that get in there?) seems hollow to me. The phrase is, “persuaded that. . .” No separate hidden meaning to persuaded should be implied.
IPI 22.01—Res Ipsa Loquitor might be usable more often. I didn’t see it that much. Plaintiffs may be insecure about going to the jury without a specific theory, but I recall at least one case where I thought it would have worked better for plaintiff.
IPI 30.01 et seq.—I’ve previously written on some of these elements, so five quick thoughts.
First, IPI 30.05, it’s pain AND suffering (two concepts, one line). In Cook, it seems atypical for plaintiff to get a separate additional line for emotional distress, IPI 30.05.01. Counties other than Cook seem to give it more often, but the defense ought to easily argue little difference between “suffering” and “emotional distress” making the claims seem overlapping.
As I’ve written before, the inability to show consciousness may bar a claim for pain but should open the claim for disability/loss of a normal life. There’s a whole big world unable to be seen, heard, felt or experienced.
30.04.02, loss of a normal life, we’re seeing really clever impeachment from the defense, like a Fitbit that shows how many steps plaintiff took every day and all sorts of media apps. Obtaining a hunting and fishing license hurt one plaintiff’s credibility. Today, there’s video everywhere. Plaintiffs’ claims had better be consistent.
As to IPI 30.06, the defense is using billing experts to show that even though paid, bills aren’t fair, reasonable, and customary.
Healthcare is a mess. We know providers are not collecting what they bill. The fact is also that physician upcharging and self-referrals seem much more common. On the other hand, that’s not the plaintiff’s doing. And it does not seem right to expect an impaired plaintiff to bypass his or her doctor and shop for medications or supplies on Amazon. I’m not sure how jurors see it. Are juries going along with these experts? I would love to hear readers’ experiences.
Re-reading IPI 30.21, the aggravation instruction, it specifically does not say that plaintiff’s damages may not be denied or limited. It does say, plaintiff’s right to damages may not be. Meaning, a plaintiff must still prove causation and damages. Damages ought not include injury to the extent they pre-existed the occurrence.
In IPI 30.23, the plaintiff doesn’t get mileage from treatment which is unnecessary, but if it can be shown treatment efforts harmed plaintiff, that might be recoverable. Damage might include pain, bills, loss of wages or loss of a normal life. It’s often the defense that says some of the treatment did cause harm .
IPI 31.00 et seq.—Two thoughts on the wrongful death series. First, Plaintiffs seem to underuse and Defendants undervalue IPI 31.11 which has eight examples of loss of “society.” How difficult is it to argue the overwhelming value of love, affection, care, attention, companionship, comfort, guidance and protection?
Furthermore, the instruction provides for “mutual” benefits, for example, the care and attention the claimant gave his elderly mom who could no longer even recognize him. Not just the loss of care she gave him, which was probably non-existent. I think this resonates with jurors.
Finally, the “Measure of Damages” series starting with IPI 31.02, seem underused by the defense. These instructions list factors to be considered including “health” and “physical and mental characteristics” which might open the door to issues a plaintiff sought to exclude, for example, smoking, drinking, drugs, obesity, motorcycle riding, or depression.
Even though we may have missed it in law school, trial lawyers have to make the instructions work for them. Find the specific words and phrases that will make each case work.
IPI 15.01—I’ve written on this before but, as it keeps coming up, an expert who merely opines something was not a “direct” cause of the injury is not really helping. He or she must say it was not even a cause, direct or indirect, as the instruction makes no such reference.
IPI 21.01—Burden of proof, more probably true than not true. For years I thought the most important word in this instruction was “more.” That’s the typical “feather” argument plaintiffs make when they do the thing with their hands trying to show a slight tip of the scales of justice. By the way, I once saw a lawyer bring in an actual scale and I thought it worked well.
Now I wonder if there is really any difference between, “more probably true than not true” and just plain “probably”. Can a plaintiff get up in closing and say, “Ladies and Gentlemen, here’s what probably happened”?
In actual experience, lawyers don’t say that explicitly but they do find other ways to say the same thing. “Whose testimony is more likely?”
Note: Never use the word “preponderance” of the evidence. Although found in the comments, it’s not in the instructions and the jury will never hear it. Big, undefined words don’t help you. One juror’s note asked the meaning of the “ponderosa” of the evidence (like from the old TV show Bonanza). Stick to the actual language of the instructions.
Note also that a witness cannot normally testify to what he or she “probably” did, for example, probably stopped at the red light, unless they can say it is their invariable practice.
Finally, arguing some special emphasis to “persuaded” (how did that get in there?) seems hollow to me. The phrase is, “persuaded that. . .” No separate hidden meaning to persuaded should be implied.
IPI 22.01—Res Ipsa Loquitor might be usable more often. I didn’t see it that much. Plaintiffs may be insecure about going to the jury without a specific theory, but I recall at least one case where I thought it would have worked better for plaintiff.
IPI 30.01 et seq.—I’ve previously written on some of these elements, so five quick thoughts.
First, IPI 30.05, it’s pain AND suffering (two concepts, one line). In Cook, it seems atypical for plaintiff to get a separate additional line for emotional distress, IPI 30.05.01. Counties other than Cook seem to give it more often, but the defense ought to easily argue little difference between “suffering” and “emotional distress” making the claims seem overlapping.
As I’ve written before, the inability to show consciousness may bar a claim for pain but should open the claim for disability/loss of a normal life. There’s a whole big world unable to be seen, heard, felt or experienced.
30.04.02, loss of a normal life, we’re seeing really clever impeachment from the defense, like a Fitbit that shows how many steps plaintiff took every day and all sorts of media apps. Obtaining a hunting and fishing license hurt one plaintiff’s credibility. Today, there’s video everywhere. Plaintiffs’ claims had better be consistent.
As to IPI 30.06, the defense is using billing experts to show that even though paid, bills aren’t fair, reasonable, and customary.
Healthcare is a mess. We know providers are not collecting what they bill. The fact is also that physician upcharging and self-referrals seem much more common. On the other hand, that’s not the plaintiff’s doing. And it does not seem right to expect an impaired plaintiff to bypass his or her doctor and shop for medications or supplies on Amazon. I’m not sure how jurors see it. Are juries going along with these experts? I would love to hear readers’ experiences.
Re-reading IPI 30.21, the aggravation instruction, it specifically does not say that plaintiff’s damages may not be denied or limited. It does say, plaintiff’s right to damages may not be. Meaning, a plaintiff must still prove causation and damages. Damages ought not include injury to the extent they pre-existed the occurrence.
In IPI 30.23, the plaintiff doesn’t get mileage from treatment which is unnecessary, but if it can be shown treatment efforts harmed plaintiff, that might be recoverable. Damage might include pain, bills, loss of wages or loss of a normal life. It’s often the defense that says some of the treatment did cause harm .
IPI 31.00 et seq.—Two thoughts on the wrongful death series. First, Plaintiffs seem to underuse and Defendants undervalue IPI 31.11 which has eight examples of loss of “society.” How difficult is it to argue the overwhelming value of love, affection, care, attention, companionship, comfort, guidance and protection?
Furthermore, the instruction provides for “mutual” benefits, for example, the care and attention the claimant gave his elderly mom who could no longer even recognize him. Not just the loss of care she gave him, which was probably non-existent. I think this resonates with jurors.
Finally, the “Measure of Damages” series starting with IPI 31.02, seem underused by the defense. These instructions list factors to be considered including “health” and “physical and mental characteristics” which might open the door to issues a plaintiff sought to exclude, for example, smoking, drinking, drugs, obesity, motorcycle riding, or depression.
Even though we may have missed it in law school, trial lawyers have to make the instructions work for them. Find the specific words and phrases that will make each case work.