OPTIMUM USE OF JURY INSTRUCTIONS DURING TRIAL

From Voir Dire to Closing Argments

  by

  Hon. William J. Haddad (Ret.)

             An English lady once asked The Lord Chief Justice: "What is necessary in order

            to win a case in court?"

            The Lord Chief Justice Replied:

                                "Madam...
                                                 First , you need a Good Case,
                                                Then you need Good Evidence, 
                                                Then you need Good Witnesses, 
                                                Then you need a Good Judge,
                                                 Then you need a Good Jury,          

                                                        And, finally you need Good Luck!"

          In going to trial, we may know that we have a "good case" and  "good evidence". However, what we cannot know are the human factors which no actuary, adjuster, scientist, computer expert, or jury consultant can predict:
            1.         How will the attorneys perform at trial?
            2.         What kind of judge will be assigned to the case?
            3.         How will lay witnesses come off in real trial conditions?
            4.         How will the experts perform on cross examination?
            5.         And, What kind of jurors will end up on the jury?

            These are "human factors" over which lawyers cannot easily predict or control. However, we can mostly predict what will be "the law of the case" by careful preparation and familiarity with the jury instructions.

I.         The Importance of Jury Instructions to the Attorney, the Judge and the Jury

            Every case has points of law, borne in the jury instructions, which are critical to winning the case. Trial attorneys who wait until rebuttal argument to tackle those issues usually lose the case. Rather, the trial practitioner should  begin to indoctrinate the jury at voir dire, and continue to drive home the legal issues in opening statement, in witness examination, and again in closing argument. By the time the judge reads instructions before deliberations, the jury will have been indoctrinated on the points of law (and the language) which are important in winning your case.

            1.     Pre-Trial Preparation - Identify the Law of the Case

            To the trial attorney, early identification of key jury instructions is an exercise which helps focus attention on ultimate issues at trial. Therefore, a draft of jury instructions should be prepared months before the case is set for trial. Then, from time to time, the draft instructions should be reviewed and modified all the way up to the final instruction conference.

             By identifying key instructions early on, one has the time to develop strategies to deal with these critical legal issues at trial. For example, how would a plaintiff in a medical malpractice case use the law to thwart a popular defense of "sole proximate cause"? This defense is articulated in paragraph two of I.P.I. 12.04 and 12.05 which pertinently read:  

            "if you decide that the sole proximate cause of injury to the plaintiff was the
             conduct of  some person" [12.04] or  "something" [12.05] other than the
             defendant, then your verdict  should be for the defendant."
                  [Tip: This defense is discussed in another article in this website "The Empty Chair Defense".]

             Therefore, in our example we see that the mere exercise of making an early selection of jury instructions may lead us to the early identification of certain legal defenses such as "sole proximate cause".  Furthermore, it would likely reveal jury instructions which squarely address this defense, namely I.P.I. 15.01--- the “Definition of Proximate Cause” which reads:

"When I use the expression 'proximate cause,' I mean a cause that, in the natural or
 ordinary course of events, produced the plaintiff's injury. [It need not be the only
 cause, nor the last or nearest cause. It is sufficient if it combines with another
 cause resulting in the injury."

            The IPI 15.01 instruction is the linchpin in defeating the defense of "sole proximate cause". Therefore, it is important to indoctrinate the jury on their duty to follow the law of causation in general. Then follow-up during trial with specific references to "proximate cause" or  "a cause" of injuries.

       2.         Voir Dire -  "Do I have your promise"

            Critical issues of law which are favorably covered in the instructions should be showcased throughout the trial, from voir dire to closing agreement. Granted, litigators may be limited in  reading or arguing instructions at various times, but they can "educate"  the jury  in other ways to acquaint them with their theory of the "law of the case".

            Jury selection is an excellent time to begin the process of educating the jury on various themes in a case. In our example lawyers might off-handedly educate the jurors about "the law of causation". The goal here is to get an early commitment that the jury will follow the law, particularly as to our example, the law in the I.P.I. 15.01 instruction. Why not get this issue out early?

"Folks, we believe the evidence will show [and it is our burden under the law, as
 the judge will later instruct you]  that Dr. Smith's negligence was "a proximate
 cause" of death of  Baby Doe.      

 "We accept and welcome our burden.

 "Now, you will take an oath to follow the law. Do I have your promise that you
  will follow  the law of negligence---the law of  damages---and the law of causation
  as the judge will instruct later in this case?

[TIP on jury selection: Some believe that the goal of voir dire is to get information from the jury with   so-called "open ended questions". Not Necessarily! Sometimes trial lawyers know right away they like a juror and want them. Rather than ask open-ended questions which may expose   their favorable proclivities, ask closed-end, perfunctory questions and move on. On the other hand, if you find a person who you know you do not like, then ask open -ended questions with lots of "whys" and "hows" in hopes they will trip up and give you a challenge for cause, saving your precious peremptory challenges.]

3.         Opening Statement - "The evidence will show"

             During opening statement keep sounding the theme of, in our example, the law of causation as given in the instructions, avoiding arguing or reading the actual instruction...

        "We believe that the evidence will show that Dr. Smith's negligence was "a cause"
         of the  death of Baby Doe. It's our duty to prove causation by a preponderance
         of evidence. And it will be your duty to follow what we call the Law of Causation
         in this case."

"There are always other factors and causes, but our duty and the evidence will
  show, that the delay of treatment by Dr. Smith was A CAUSE or contributing
  factor in the death of Baby Doe."
        [Tip: If a particular instruction is pivotal to the outcome of the case, it is within the
         discretion of the court to read certain instructions before opening statement. See
         Sup. C. Rule 239(d)(ii) which states that the judge "may orally instruct the  jury...
         on substantive law applicable to the case, including but not limited to the elements
         of the claim or affirmative defenses."]

               4.         Examination of Witnesses - "Was Dr. Smith's conduct  'a cause'"

          During the direct examination litigators can continue to educate jurors on causation by questioning the treating doctors and retained experts, choosing the certain words seen in the instructions. For example:

"Dr. Jones in your expert opinion based upon a reasonable degree of medical
 certainly is it likely that Dr. Smith's conduct was "a [proximate] cause"
 [contributing cause]  of the death of  Baby Doe?"

       5.         Cross-Examination of Witnesses - "Wasn't Dr. Smith's conduct 'a cause'?

            During cross examination of defense experts, some lawyers employ a rhetorical question to expose bias by reminding the jury of the paid expert's conspicuous omissions of  the causative conduct of the defendant.  For example, where the retained expert identifies sole causation due to a pre-existing condition (I.P.I 12.05) or the treatment by a non-party physician, the plaintiff can still rhetorically remind the jury of the "law of causation":

"Doctor, you were paid to render an opinion naming all of these other,
 multiple causes contributing to the death of Baby Doe?

 Doctor, how about the Dr. Smith's delay in treatment? Wasn't this even
 one of the  causes which contributed to Baby Doe's illness
 leading to her death?"              

       6.         Closing Argument - Reminder of Promise to follow the law

             In our example, closing argument presents the final opportunity to remind the jury of its promise to follow the law, as stated in IPI 15.01:

"The judge will instruct you that we are only required to show you, by a
 preponderance of evidence---that it was more likely true than not true,
 that the delayed radiology report was "a cause" of the death of Baby Doe.
 It need not be the only cause, nor the last or nearest cause....it can combine
 with other causes of death."

            Displaying the instruction on a foam board or through power point video with highlights of important terminology is highly effective.  And always remind the jury of  their promise to follow the "law of causation" in this case, regardless if they agree with it. "It is our duty to follow the law, even if we disagree with it".

            On the other hand, defense attorneys should use of the jury instructions in the same manner to show that the plaintiff has failed to prove essential elements of the cause of action. This, again, is an educational process which begins at voir dire.

       7.         Judge's Reading of Instructions

             The final and confirming moment of indoctrination of the legal issue (here causation) is in the reading of the instructions which the jury takes with them to deliberations.  As stated at the outset, every trial has important issues of law gleaned from the instructions.  By tackling those issues "early and often" the trial lawyer can indoctrinate the jury about the "law of the case" as reiterated by the judge who, under our example, will proceed to read the instruction on proximate cause, as being "a cause". Just like you said!

                                                           *  *  *  *  *

II.  DO's and DON'T's  of  Presenting Jury Instructions to the Judge

1. DO tender a "draft" of your instructions in advance of trial.
   1. This educates the judge about the "Law of the Case"
   2. But make it clear this is your draft and that final instructions will be presented at the instruction conference after completion of evidence.
2. DO ask the judge at the outset of trial when the instruction conference will be       held. It is important to know exactly when you will have the final opportunity to supplement your instructions. Attorneys often wait for the final conference to present their strategic instructions, special interrogatories, and amendments to the pleadings to comport to added issues instructions under I.P.I 20.01.
3. DO have cases to support your request for important instructions, especially special interrogatories and comparative negligence fact patterns.
4. DO have a disc of your instructions with a printer available for changes.
5. DO have your IPI book on hand for access to committee comments.
6. DON'T be unprepared. Have marked instruction in chronological order for the judge and the parties, and a clean set for the jury.
7. DON'T submit unnumbered instructions. The IPI number are not enough.
8. DON'T inundate the judge with non-standard instructions. Even if they are based upon verbatim case law, there should be some actual proof that they were actually used in a trial. (Exception: unique cases where standard instructions do notexist)
9. DON'T bring last minute instructions on the day of closing argument.
10. DON'T go to closing argument without first getting a ruling on every instruction.
11. DON'T go to closing argument without being sure you have made all of  the modifications and corrections in the instructions.

           The importance of properly prepared jury instructions cannot be underestimated. Instructions should be modified wherever possible to make them simple and easy to understand for the jury, nd also the judge. Juries prefer instructions which are easy to understand and logically organized.

           Simple instructions make for quick verdicts.

           Complicated instructions make for mistrials.

IRS SHOWS THAT IT HAS A HEART

New Rules Make it Easier for Taxpayers to Settle Old Debts

(By David Schlack & Kelly McGinnity, Schlack &  McGinnity, Chicago, IL, 312-368-1266)

  Without fanfare, on Monday, May 21, 2012, the Internal Revenue Service issued new rules for calculating the amount that a taxpayer must offer to the IRS in order to obtain a settlement of his old tax debts. This process is called an Offer In Compromise.  These new rules make it easier for taxpayers to qualify for Offers In Compromise, and they materially reduce the amounts that many taxpayers will be required to pay in order to settle their tax delinquencies. With the issuance of these new rules, the IRS has opened the door for many delinquent taxpayers to wipe the slate clean and start fresh.  For example, the settlement amount for one taxpayer who owes the IRS $550,000, was calculated using the old rules to be $120,600.  As soon as the new rules were issued, his settlement amount dropped all the way to $36,800.

  In a Memorandum (IR-2012-53) which announced the new rules, IRS Commissioner, Doug Shulman, stated that these changes are “… part of our multi-year effort to help taxpayers who are struggling to make ends meet”, and an “… expansion of the Fresh Start Initiative by offering more flexible terms for the Offer In Compromise program that will enable some of the most financially distressed taxpayers to clear up their tax problems, and in many cases more quickly than in the past.”   The new rules are “common-sense changes to the OIC program”. 

  The IRS’ new rules for Offers In Compromise modify Section 5.8.5 of the IRS Manual.  This Section, which is entitled “Financial Analysis” dictates how the “Minimum Offer Amount” for an Offer In Compromise is calculated.  Prior to the issuance of the new rules, the method for computing a Minimum Offer Amount was fraught with inequities which caused many taxpayers to be ineligible for Offer In Compromise relief.  Or, for those who were able to qualify, the old rules made their calculated Offer Amounts too costly … often times, prohibitively costly.  Now, with the IRS’ new rules, more taxpayers will qualify for Offer relief, and for those who qualify, their Minimum Offer Amounts may be significantly smaller. 

  One of the most important changes under the new rules concerns the method for calculating a taxpayer’s reasonable collection potential. Under the old rules, the IRS required a taxpayer’s Minimum Offer Amount to include 48 months worth of his future income for Offers which are to be paid off within 5 months, or 60 months worth of his future income for Offers which are paid off in 6 to 24 months.   Under the new rules, the IRS will now include only 12 months worth of future income for Offers paid within 5 months, or 24 months worth of future income for Offers paid in 6 to 24 months. [IRM 5.8.5.23] These new multipliers significantly reduce the amount that most taxpayers will be required to pay to compromise their delinquent taxes.

  Another significant change to the Offer In Compromise financial analysis process is the treatment of “income producing assets.” Previously, the IRS considered the equity in a taxpayer’s income producing assets to be a realizable value, and required that this value be included into the Minimum Offer Amount.  In addition, the IRS required that the future income which would flow from the continued use of the income producing assets to also be included into the Minimum Offer Amount. Now, under the new rules, the IRS will no longer include the equity in the taxpayer’s income producing assets unless it is determined the assets are not critical to his continued business operations. [IRM 5.8.5.5.1] The IRS’ new approach to income producing assets recognizes the common sense fact that you cannot slaughter the cow and still expect to get milk.  By adopting this new rule, the IRS appears to have recognized that it is in America’s best interest to work with taxpayers to maintain their business operations, particularly in a bad economy. [IRS 5.8.5.5.1(3)]

  Additionally, under its new rules, the IRS will now allow taxpayers to claim living expense deductions for: (i) federally guaranteed student loan payments; (ii) delinquent state and local income taxes; (iii) credit card payments; and (iv) bank fees. Previously, none of these expenses were considered to be allowable living expenses when calculating a taxpayer’s future income.

  Also, the new rules will now allow taxpayers to exclude the following amounts from their equity in assets: (i) the first $1,000 of cash in the bank; and (ii) $3,450 per vehicle (up to two per family).  Under the old rules, every dollar in the taxpayer’s bank account plus the full amount of the equity in his vehicles had to be included into his Minimum Offer Amount.

  The impact of these new rules can be exemplified by the case of John Q. Smith.  Mr. Smith owes the IRS $550,000 in unpaid personal income taxes from previous years.   He has equity in assets totaling $22,800, and future income of $1,825 per month.  The financial analysis under the old rules resulted in a Minimum Offer Amount of $120,600.  ($22,800 plus $1,825 x 48 months)

  When calculated under the IRS’ new rules, Mr. Smith’s Minimum Offer Amount dropped to only $36,800. This is because the new rules allowed him to exclude $1,000 of his cash in bank, and $6,900 of the equity in his two vehicles. Also, his future income only had to be multiplied by 12 months instead of 48.  Now, upon his payment to the IRS of $36,800, the IRS will write-off the remaining $513,200 of his old tax debt. As this example illustrates, the IRS’ new rules can result in a much lower Minimum Offer Amount for many taxpayers.

  For a taxpayer whose Offer In Compromise has been accepted, once his settlement amount is paid, the IRS will write-off 100% of his remaining tax delinquencies, including all accrued interest and penalties.  However, every Offer In Compromise settlement is conditioned on the requirement that the taxpayer must file and pay all of his federal taxes for the next five years on time.  If a taxpayer fails to satisfy this condition, his settlement can be voided.

  Even with the IRS’ new rules, the process of applying for Offer In Compromise relief remains arduous and time consuming.  It requires precise work, and it involves complicated legal and accounting issues, as well as many complex calculations.  Although this process can be daunting, it can be well worth the effort.  Now, with its new rules, the IRS has brought Offers In Compromise within closer reach of taxpayers who are struggling financially, and who need a fair chance to wipe their slates clean and start fresh.

“In Illinois, employers who fire employees on account of jury service may be found in contempt of court”

      (By Honorable William Haddad and Brian Roth)

The importance of jury service is axiomatic. To be sure, jury service is among the most important civic functions that one can perform. The United States Constitution repeatedly recognizes the jury institution as a hallmark of our nation’s system of governance. See, e.g., U.S. Const. art. III, § 2 (“The Trial of all Crimes . . . shall be by Jury . . . .”); U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .”); U.S. Const. amend; VI & VII (“In suits at common law… the right of trial by jury shall be preserved…”). Illinois has codified these principles under 705 ILCS 305/4.1.

Section 305 does not require employers to pay jurors during their service. However, it does require employers to give “time off from employment” for jury service, and, furthermore, it sanctions employers who “discharge, threaten to discharge, intimidate or coerce any employee by reason of the employee's jury service.” Violation of §305 can result in civil or criminal contempt, reinstatement of the employee with restoration of pay and benefits, and attorney’s fees.

However, the effect of §305 was compromised by a later amendment that states “that the employee summoned for jury duty must deliver to the employer a copy of the summons within 10 days of the date of issuance of the summons…” This provision diminished the effectiveness of the juror protection statute because jury summons rarely disclose the 10-day notice requirement and, even so, most jurors rarely notify employers to expect service beyond the day of their appearance.

The issue arises---can courts go beyond their statutory authority to protect the integrity of the jury system? The answer is “yes.” Section 305 was never intended to preempt other laws protecting jurors: “Any right or remedy provided in this Section is in addition to any right or remedy otherwise provided by law to an employee.” 705 ILCS 305/4.1(f). Indeed, Illinois recognizes other rights and remedies found at common law and the Constitution which give sweeping authority to  the court to protect the integrity of the jury system and citizens who serve it. See, e.g., People v. Huggins, 258 Ill. App. 238, 243 (1st Dist. 1930); People v. Vitucci, 49 Ill. App. 2d 171, 172 (1st Dist. 1964); Palmateer v. Int’l Harvester Co., 85 Ill. 2d 124, 129 (1981); Ill. Const. art. 1, § 13; Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 72-73 (1994).

In Illinois, employers who terminate employees on account of jury service may be found in contempt of court: “There is no question that such conduct on the part of the employer would be contemptuous.” Vitucci at 172; see also Palmateer at 129. This comports with principles enunciated in the Illinois Constitution which reflects public policy to protect the sanctity of the jury system: “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” Ill. Const. art. 1, § 13.

Aside from Illinois, judicial authority to protect jury service is universally recognized throughout the United States, as seen in Eddins v. Geneva Pharmaceuticals, Inc., 877 F. Supp. 413, 424-25 (E.D. Tenn. 1994), where the court upheld the plaintiff-juror’s right to seek damages from his employer for wrongful termination for jury service; Brown v. MFC Finance Company of Oklahoma, 838 P.2d 524, 526 (Okla. App. 1992), where the court upheld plaintiff’s recovery of $175,000 for wrongful discharge for jury service; Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 121 (Pa. Super. Ct. 1978), where the court upheld an employee’s right to sue his employer for firing him when he refused to avoid jury service; and Nees v. Hocks, 536 P.2d 512, 512 (Or. 1975), where the Oregon Supreme Court upheld a jury award against an employer for wrongful discharge due to jury service, stating:

[A]ctions by the people, the legislature and the courts clearly indicate that the jury system and jury duty are regarded as high on the scale of American institutions and citizen obligations. If an employer were permitted with impunity to discharge an employee for fulfilling her obligation of jury duty, the jury system would be adversely affected. The will of the community would be thwarted. Id. at 516.

The final question then becomes---when is it appropriate for courts to invoke their contempt powers where a citizen is harmed for rendering jury service? Contempt is appropriate where a person affects the court’s process in a way that may be “calculated to . . . hinder or obstruct a court in the administration of justice . . . .” People v. Gholson, 412 Ill. 2d 294, 298 (1952). The court’s contempt power is not dependent on any constitutional or legislative grant, but rather it is essential to the administration of justice. 47th & State Currency Exch.. v. B. Coleman, 56 Ill. App. 3d 229, 233 (1st Dist. 1977). It has long been considered that the “power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders, and writs of the courts, and consequently to the due administration of justice.” Ex Parte Robinson, 86 U.S. 505, 510 (1873).

In the final analysis, the right of a jury trial inherently guarantees that the jury will be fairly drawn from a cross section of society. See People v. Payne, 99 Ill. 2d 135, 138 (1983). Working citizens compose an integral part of that cross section. Therefore, the discharge of an employee for having served on a jury implicitly infringes upon the litigant’s right to a fair trial, society’s right to provide a fair trial, and the citizen’s right to freely participate in the jury system, which is the cornerstone of our justice system in an open and democratic society.

Haddad to resign after decade on the bench in Cook County

By Mary Kate Malone
Law Bulletin staff writer - 7/31/2013

Cook County’s first Arab-American circuit judge plans to resign in September after 10 years in a position he held by order of the Illinois Supreme Court.

Circuit Judge William J. Haddad submitted his resignation letter on Monday and his last day will be Sept. 6.

"It’s been great. It’s been a rush," Haddad said. "People say I work too hard, but it’s like playing baseball. You love it, and get paid for doing it. That’s why you put a lot of effort into it — because you enjoy the job."

Haddad, 67, was appointed to the bench in 2003 to fill a vacancy. He narrowly lost his bid to keep his seat in the 2004 primary election.

His term was scheduled to expire at the end of 2004, but the state high court recalled him to the bench for a six-year period. The court recalled him again in 2010 for a three-year period ending Nov. 30.

Haddad’s chance to get recalled a third time disappeared when the state high court announced in 2011 that it would no longer recall judges who had not won election.

Circuit Judge William D. Maddux, presiding judge of the Law Division, said he sent letters to the Illinois Supreme Court trying to have Haddad recalled again, "but to no avail."

"He’s one of the finest judges I’ve ever encountered in the circuit court," Maddux said. "The man is bright, he’s able, very intelligent and has sound judgment. … We’re losing a good person.

Though Haddad could have stayed until Nov. 30, he decided to leave early because he is "anxious" to start his new career.

He plans to mediate cases with ADR Systems of America LLC and become active with the American Middle East Voter Alliance, which helps organize Arab-American voters in Cook County "into one cogent group" and will evaluate local candidates’ sensitivity to minority issues.

"It’s a community that often undervotes and is overlooked by officeholders who have the power to appoint them to positions that otherwise they would not be elected to," Haddad said.

Haddad chose not to run for election in part because he doesn’t believe he could win, he said.

When he lost the primary in 2004, he had the backing of many government officials including then-Mayor Richard M. Daley, yet it still wasn’t enough, he said.

"I don’t want to say men with unusual last names have a difficult time getting elected, but there is some history there," he said.

Since 2005, Haddad has worked in the trial section of the Law Division, handling cases involving medical malpractice, product liability and construction injuries.

"He is a wonderful judge," said Joseph W. Balesteri, a partner at Power, Rogers & Smith P.C., who represents plaintiffs in personal-injury cases and has appeared before Haddad. "It’s a sad day for Cook County citizens and our trial bar."

For complex, high-dollar trials in the Daley Center, when both sides may request the trial judge, Haddad is often named, Balesteri said.

"He’s equal to a World Series-quality umpire … It’s sad we’re losing him. He’s a great man."