Table of Contents
- [6.1] Introduction
- [6.2] Role of Jury Science
- Conferences Before Jury Selection
- Voir Dire
- [6.19] Opening Statements
- Presentation of the Evidence
- [6.41] Summation
- [6.42] Deliberations, Return of Verdict, and Entry of Judgment
- [6.43] Posttrial Motions
While trying a wrongful-death action may seem the same as trying a personal injury case, there are significant differences that impact trial preparation, strategy, and presentation. For example, what if the only eyewitness to an accident resulting in a death turns out to be the defendant in a civil suit brought by the deceased’s personal representative? Will the defendant be allowed to testify over objection? Or, if there are no surviving eyewitnesses at all, can a wrongful-death case succeed? And how does the plaintiff establish damages in a wrongful-death case? What special problems do defendants encounter in wrongful-death cases?
This chapter addresses these and other questions as well as some of the unique aspects of trying a wrongful-death case, while incidentally offering some information applicable to any type of case. For example, in the complex process of preparing for a wrongful-death trial, just like preparing for the simplest of cases, much emphasis should be placed on organizing the evidence and law, argument and witnesses, and conforming to the proper procedures and applicable court rules.
[6.2] Role Of Jury Science
Jury science is playing an increasingly important role in litigation generally and wrongful death litigation in particular.
In high-stakes jury trials, lawyers rely on jury consultants to gain a winning edge. Jury consultants provide insight into juror behavior and help attorneys craft arguments and trial themes that will persuade juries. Jury consultants also use empirical data to predict juror predispositions and provide invaluable assistance in voir dire and the jury selection process. Jury consultants have grown in popularity due to highly publicized trials including the O.J. Simpson, Scott Peterson and Martha Stewart trials. Sally Kane, 10 Hot Legal Careers for Non-Lawyers (About.com, 2010).
Hiring jury consultants and conducting “mock” trials are now established methods employed by some trial attorneys trying to predict or influence a trial’s outcome. Other techniques, such as shadow juries are also becoming increasingly popular. Jury science is a growing field, and when it comes to helping litigants know and influence their juries, this science is advancing rapidly. Gaining insight into the likes, dislikes, and predispositions of a venire or a jury gives the attorney the opportunity to develop a more informed trial strategy.
While the incorporation of jury science into trial preparation can be costly, the benefits in many wrongful-death cases outweigh the costs. Before the commencement of trial, focus groups or “mock” trials might be conducted to help lawyers and parties better understand the power or lack of power of their evidence and arguments. Moreover, it is no longer unusual for jury consultants to assist with developing arguments and demonstrative evidence, and they often attend the trial to assist with voir dire and provide continuous feedback thereafter
No one, including jury consultants, has a fool proof crystal ball that can predict the outcome of jury deliberations in a wrongful-death case. However, trial lawyers in all cases need all the information they can get about how the decision makers are likely to view the case; and this is especially true in wrongful-death cases. Some people believe wrongful-death plaintiffs, even those with clearly meritorious cases, are wrongdoers themselves seeking blood money. What jury consultants can do is help trial lawyers ferret out such issues and develop strategies to deal with them.
Conferences Before Jury Selection
A. [6.3] In General
At the final pretrial conference or on the day of trial before jury selection begins, well-prepared trial attorneys have the opportunity to advance their client’s position with the court. As in all other facets of trial, preparation for this is critical because this conference with the trial judge can set the tone for the rest of the trial.
Counsel for the plaintiff in a wrongful-death case must be prepared to introduce the decedent to the court and quickly state the central facts of the case, the legal basis for recovery, the items of legally compensable damages, and the negotiation history. Defense lawyers, on the other hand, should be ready to rapidly identify the disputed issues. It is common for trial judges to get involved in settlement discussions at this late phase and because most judges have less experience with wrongful death than personal injury damages evaluation, counsel should be prepared to explain the elements of recoverable damages and explain the evidence on each element in more detail than might be called for in an injury case. Both lawyers should also be in a position to privately and candidly discuss with the court not only the strengths and weaknesses of their client’s position, but also the extent to which the client does or does not understand the risks. Above all, the trial lawyers who have lived with the case a for a long time and know more about it than the judge could about the case can fulfill their duties to the court and public, without sacrificing their duty of zealous representation of their clients, by quickly and accurately providing the judge with the information the judge will need to do the best job possible either assisting the parties to settle the case or presiding over the trial.
The last pretrial conference with the court before jury selection is also an opportune time for the trial attorney to alert the court to any scheduling or trial management issues, determine what procedures will be followed at each stage of the trial, and alert the judge to any other issues requiring special attention. Of course, counsel must also review and have copies available of all applicable rules. In state court, these include the new Illinois Rules of Evidence, the Illinois Code of Civil Procedure, 735 ILCS 511-101, et seq., the Illinois Supreme Court Rules, the local court rules, and the rules and procedures, if any, followed by the trial judge. In federal court, these include the Federal Rules of Evidence, the Federal Rules of Civil Procedure, the district court local rules, and the rules and procedures, if any, followed by the trial judge.
The last pretrial conference with the court before jury selection may also be the right time for dealing with any objections to the use of visual aids or exhibits during opening statements.
B. [6.4] Preparation – What To Bring
Some of the documents trial attorneys might prepare and bring to the final pretrial conference or day of trial preliminary conference include:
- a statement of the case;
- motions in limine;
- other motions;
- trial briefs;
- notices to produce at trial;
- draft jury instructions;
- a pretrial memorandum;
- exhibits; and
- any other items requested by the court.
These items are discussed in more detail in §§6.5 – 6.13 below.
[6.5] Statement of the Case
Although a statement of the case is not required by any provision of the Code of Civil Procedure or the Illinois Supreme Court Rules, some local rules and most judges require a statement of the case. For example, one Illinois judicial circuit’s rule states:
Unless the court orders otherwise, in all jury cases the State’s Attorney in criminal cases, and the plaintiff’s attorney in civil cases, shall prepare and submit to the Court and opposing parties a Statement of the Nature of the case to be read by the Court to the venire prior to voir dire examination. The statement shall include the time, date, and place of the alleged occurrence or offense and a brief description thereof, the name of the parties involved and their counsel and a list of witnesses, occupation if relevant and town of residence, whom the parties expect to call. Opposing counsel may suggest amendments to the statement prior to it being read to the venire. 19thJudicial Circuit Court Rule 5.03.
Rule 5.03 is a clear statement of the purpose of a statement of the case and provides excellent guidance on how to prepare one for jurisdictions which have no rule of their own. The rule dictates that it is the plaintiff’s attorney’s job to prepare and submit the first draft of the statement, while defense counsel should be prepared to offer any desired changes.
For example, in a wrongful-death case the author tried in Winnebago County, this statement of the nature of the case was agreed to by the parties and read to the venire at the outset of jury selection:
This lawsuit arises out of a boating accident on June 30, 2001 on Clear lake, Wisconsin. Amanda Backes, age 9, was being pulled on an inner tube behind a power boat driven by Sonnie Smith. Joe Gibson was operating a Bombardier Sea-Doo personal watercraft on the lake. A collision occurred between the inner tube and the personal watercraft, and Amanda Backes died from the injuries. This lawsuit is brought by the parents of Amanda Backes, seeking money damages from Sonnie Smith as the operator of the power boat, Joe Gibson as the operator of the personal watercraft, and Bombardier, Inc. as the designer and manufacturer of the Sea-Doo personal watercraft. Bombardier, Inc. has also filed a claim against the spotter in the power boat, Yvette Oliver.
[6.6] Motions in Limine
A “motion in limine” has been defined as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” BLACK’S LAW DICTIONARY, p. 1109 (9th ed. 2009).
One difficulty common to all motions in limine is that they occur – by definition – out of the normal trial context, and resolving such a motion requires the trial court to determine what that context will be. Thus, the court must receive offers of proof consisting either of live testimony or counsel’s representations that the court finds sufficiently credible and reliable. Because a motion in limine typically asks the court to bar certain evidence, the supreme court has deemed such motions “powerful weapons” and has urged caution in their use. Reidelberger v. Highland Body Shop, Inc., 83 IU.2d 545, 550, 416 N.E.2d 268, 271, 48 Ill.Dec. 237 (1981). People of State of Illinois v. Owen, 299 lll.App.3d 818, 701 N.E.2d 1174, 1178,233 Ill.Dec. 900 (4th Dist, 1998).
Motions in limine must be submitted in writing. Cunningham v. Millers General Insurance Co., 227 1ll.App.3d 201,591 N.E.2d 80,83, 169 lll.Dec. 200 (4th Dis!. 1992); Lundell v. Citrano, 129 1ll.App.3d 390, 472 N.E.2d 541, 545, 84 llLDec. 581 (1st Dis!. 1984). The relief requested in a motion in limine should be specific. E.g., Reidelberger, supra. The moving party bears the burden, at the risk of waiver, to obtain a ruling from the court on the motion. Department of Public Works & Buildings of State of Illinois v. Roehrig, 45 1ll.App.3d 189, 359 N.E.2d 752, 760, 3 Il1.Dec. 893 (5th Dis!. 1976).
Rulings on motions in limine are interlocutory in nature and may be changed during trial. Cunningham, supra; Romanek-Golub & Co. v. Anvan Hotel Corp., 168 1ll.App.3d 1031, 522 N.E.2d 1341, 1347, 119 Ill.Dec. 482 (1st Dist. 1988). Trial courts have broad discretion and can deny motions in limine and instead consider the evidentiary issue only after the contested evidence is offered in the normal course of trial. McMath v. Katholi, 304 1ll.App.3d 369, 711 N.E.2d 1135, 1140, 238 1ll.Dec. 474 (4th Dis!. 1999), rev’d on other grounds, 191 Il1.2d 251 (2000). To avoid any risk of waiver, counsel should make an offer of proof as to any matter
barred by the Court’s in limine rulings and should, perhaps outside the hearing of the jury, move to admit the evidence excluded at the appropriate point in the trial. Similarly, if the court rules in limine that evidence will be admitted, counsel opposing the introduction of the evidence should renew the objections on the record at the appropriate point during the trial. Illinois State Toll . Highway Authority v. Heritage Standard Bank & Trust Co., 163 ll1.2d 498, 645 N.E.2d 896, 898, 206 Ill.Dec. 644 (1994).
Motions in limine have at least two principal advantages. First, the attorney has time before trial to carefully research, reason, and draft the arguments relating to significant evidentiary issues. Second, if the judge rules on the motion, the attorneys have the advantage of preparing the case knowing the rulings. For a general discussion of motions in limine, see Christopher B. Mead, Motions in Limine: The Little Motion That Could, 24 Litig., No.2, 52 (Winter 1998).
Attorneys trying wrongful-death cases should consider several strategic issues before filing a motion in limine. For example, by filing a motion in limine concerning the admissibility of contested evidence, counsel provides the opponent with additional time to respond to the evidentiary arguments and also to counter the evidence at trial. Similarly, the opposition will benefit from having advance notice of counsel’s challenges to its evidence and may be in a better position to respond than if forced to respond in the heat of trial. Moreover, filing the motion may not result in any greater degree of certainty because the judge is not obligated to rule on a motion in limine before trial. And since any rulings are interlocutory, the trial judge may have a change of heart during trial. These and other competing considerations should be weighed for each substantive motion in limine before deciding whether it should be brought.
When a motion in limine is filed, the trial attorney should prepare a draft order granting the relief requested to save time and to ensure that the order is sufficiently comprehensive to provide the desired protection. The order should require that opposing counsel admonish all witnesses not to refer to any matters that have been barred and specify that the order applies to all phases of trial including voir dire.
The subject matter of a particular motion in limine is a function of the evidence, legal theories, and cast of characters involved. Some motions are no different from those filed in personal injury actions. For example, a corporate defendant may wish to move in limine to bar reference to the size or financial condition of the corporation. Other motions apply only to wrongful-death cases, such as motions seeking to disqualify evidence under the Dead-Man’s Act, 735 ILCS 5/8-201, et seq. See §§6.24 – 6.29 below.
Examples of motions in limine that may be useful in wrongful-death cases follow. This list is meant to be illustrative, not exhaustive. The facts of the case, its problems, and counsel’s creativity are the most important guideposts.
To bar the testimony of a witness who is incompetent to testify under the Dead-Man’s Act. The so-called Dead-Man’s Act is discussed in detail in §§6.24 – 6.29 below. It is appropriate for counsel for the personal representative of the deceased to raise Dead-Man’s Act objections by motion in limine. See Kelley v. First State Bank of Princeton, 81 Ill.App.3d 402, 401 N.E.2d 247, 36 ll1.Dec. 566 (3d Dist. 1980).
To bar evidence of the fault of the plaintiffs’ employer, parties who have settled, and nonparties. 735 ILCS 5/2-1117 governs joint liability and sets forth Illinois’ form of modified joint and several liability, which is sometimes referred to as the “25 percent rule.” The statute specifies who is considered in the §2-1117 fault allocation – “the defendants sued by the plaintiff, and any third party defendant except the plaintiffs employer.” Id. Moreover, the Illinois Supreme Court has held §2-lll7 does not permit apportionment of fault to settling defendants. Ready v. United/Goedecke Services, Inc; 232 Ill.2d 369, 905 N.E.2d 725, 328 Ill.Dec. 836 (2008) (plurality op.).
Thus evidence of the fault of the plaintiffs’ employer, parties who have settled, and nonparties is irrelevant to allocation of fault under §2-ll17 and, in some cases, may be an appropriate topic for a motion in limine. However, the law has been rapidly developing in this area. For example, in Ready v. United/Goedecke Services, Inc., 238 Ill.2d 582, 939 N.E.2d 417, 422, 345 Ill.Dec. 574 (2010) (plurality op.), the Illinois Supreme Court plurality found the trial court erred in barring evidence of a nonparty whose conduct the defendant argued was the sole proximate cause of an accident resulting in wrongful death:
United was entitled to present evidence to support a sole proximate cause jury instruction, and the question becomes whether that evidence would have entitled United to such an instruction. . . There must be some evidence in the record to justify an instruction, and the second paragraph of IPI Civil (2000) No. 12.04 should be given where there is evidence, albeit slight and unpersuasive, tending to show that the sole proximate cause of the accident was the conduct of a party other than the defendant.
The plurality went on to review the evidence, however, and determine it was insufficient to justify the sole cause jury instruction and thus the trial court’s error in excluding the evidence in limine was deemed harmless. 939 N.E.2d at 423 – 424. See also Nolan v. Wei/-McLain, 233 m.2d 416, 910 N.E.2d 549, 331 Ill.Dec. 140 (2009); Leonardi v. Loyola University of Chicago, 168 Il1.2d 83, 658 N.E.2d 450,212 Ill.Dec. 968 (1995).
Absent any evidence the sole proximate cause of the wrongful death was the fault of the plaintiffs’ employer, parties who have settled, or nonparties, under Ready, supra; Nolan, supra; and Leonardi, supra, it would seem appropriate to grant a motion in limine seeking to preclude such evidence and argument. However, the latest word seems to be that such motions should be denied when there is some evidence, “albeit slight and unpersuasive, tending to show that the sole proximate cause of the accident was the conduct of a party other than the defendant.” Ready, supra, 939 N.E.2d at 422. Nevertheless, “slight and unpersuasive” evidence does not appear to be enough to quality for a jury instruction on nonparty sole proximate cause, and, without one, a nonparty sole proximate cause argument would be clearly inappropriate and a proper topic for a motion in limine. Clearly, the last word in this thorny area of the developing law has not been written.
To allow and set the parameters of counsel’s participation in jury selection. Illinois Supreme Court Rule 234 requires the court to conduct the voir dire examination of prospective jurors, authorizes the court to allow parties “to submit additional questions to it for further inquiry
if it thinks they are appropriate[,]” and states the court “shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages.” A motion in limine is an appropriate means to clarify with the court the role; if any, counsel will be allowed in direct questioning of jurors. The Illinois Supreme Court has clarified the meaning of S.Ct. Ru1e 234 in construing the identical language of S.Ct. Rule 431 (which applies in criminal cases):
Thus, what the rule clearly mandates is that the trial court consider: (1) the length of examination by the court; (2) the complexity of the case; and (3) the nature of the charges; and then determine, based on those factors, whatever direct questioning by the attorneys would be appropriate. Trial courts may no longer simply dispense with attorney questioning whenever they want. We agree with the Allen court’s observation that the “the trial court is to exercise its discretion in favor of permitting direct inquiry of jurors by attorneys.” [People of State of Illinois v. Allen, 313 1ll.App.3d, 730 N.E.2d 1216, 1221, 246 Ill.Dec. 751 (2d Dist. 2000)].We are not prepared to say, however, that it is impossible to conceive of a case in which the court could determine, based on the nature of the charge, the complexity of the case, and the length of the court’s examination, that no attorney questioning would be necessary….
The rule does not state that the court shall allow the attorneys to question the entire venire in every case. Rather, it provides that the court shall allow whatever attorney questioning it deems proper after considering the factors set forth in the rule. People of State of Illinois v. Garstecki, 234 1l1.2d 430, 917 N.E.2d 465, 474, 334 Ill.Dec. 639 (2009).
Evidence of consumption of alcohol or drugs without evidence of intoxication. Evidence of consumption of alcohol can be unfairly prejudicial when there is no evidence that the consumption played any causal role in the accident. This type of evidence is probably best dealt with by a motion in limine. See Fraher v. Inocencio, 121 Ill.App.3d 12, 459 N.E.2d 11, 76 Ill.Dec. 602 (4th Dist. 1984).
Collateral source payments. Evidence that an injured person’s or decedent’s economic losses have been paid by a third party independent from the tortfeasor is generally inadmissible under the collateral-source rule. Arthur v. Catour, 216 lll.2d 72, 833 N.E.2d 847, 851, 295 Ill.Dec. 641 (2005). Such matters may be appropriate topics for a motion in limine. The theory behind this rule is to keep the jury from learning anything about collateral income that could influence its decision. Boden v. Crawford, 196 llLApp.3d 71,552 N.E.2d 1287, 142 lll.Dec. 546 (4th Dist. 1990). One of the most common applications of the rule is to prevent defendants from introducing evidence that a plaintiff’s losses have been compensated, even in part, by insurance. Arthur, supra, 833 N.E.2d at 852. Therefore, the plaintiff may claim the entire amount initially billed by the healthcare provider for services rendered even if the provider accepted payment of a reduced rate from the plaintiff’s insurer. 833 N.E.2d at 849. Although in certain medical malpractice cases the judge may reduce the plaintiff’s verdict after trial to reflect payment by collateral sources pursuant to 735 ILCS 5/2-1205 and 5/2-1205.1, evidence of the collateral source payments remains inadmissible during the trial. See Boden, supra.
Nontaxability of the award. In state court, the jury is normally not told that the wrongful death award is not taxable. Klawonn v. Mitchell, 105 lll.2d 450,475 N.E.2d 857, 859, 86 Ill.Dec, 478 (1985). The opposite rule is followed by the federal courts in the Seventh Circuit, even in diversity cases. In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 701 F.2d 1189, 1200 (7th Cir. 1983). When the jury will not be instructed about the nontaxability of the award, a motion in limine is appropriate. Id.
United States District Court Judge Jeanne E. Scott of the Central District of lllinois most recently summarized the present state of the law on this issue:
In diversity cases, where state law decisions on jury instructions or the admissibility of evidence are based on substantive state law, federal courts must apply that state law. Id. Where such decisions are based only on procedural law, or on incorrect interpretations of federal law, federal law governs. Id, Under federal law, jurors are instructed that their lost wages damage award is not subject to taxation. In re Air Crash Disaster Near Chicago, Ill. on May 25,1979, 803 F.2d 304, 314 (7th Cir. 1986) (Air Crash II). Thus, whether such an instruction – and argument or evidence related to it – is proper here depends on whether the Illinois prohibition is based on substantive law.
In 1983, in Air Crash I, the Seventh Circuit held that Illinois’ ban on a tax instruction was not substantive. Air Crash I, 701 F.2d at 1200. Specifically, it concluded that in Hall v. Chicago & North Western Railway, the Illinois Supreme Court had prohibited such an instruction on two procedural bases and one misunderstanding of federal law. [Hall v. Chicago & North Western Ry., 5 Ill.2d 135, 125 N.E.2d 77 (1955)]. In 1985, the Illinois Supreme Court issued another decision on this issue. See [Klawonn v. Mitchell, 105 lll.2d 450, 475 N.E.2d 857, 86 lll.Dec. 478 (1985)]. The Illinois Supreme Court did not address Air Crash I, but it noted that it disagreed with other federal cases allowing this instruction and reaffirmed its procedural bases for banning the instruction. See Klawonn, 475 N.E.2d at 860 – 61. In 1986, in Air Crash II, the Seventh Circuit reaffirmed, in dicta, its conclusion that Illinois had no substantive reason for refusing the instruction. Air Crash II, 803 F.2d at 315. It did not address Klawonn.
District courts in this circuit have held that Klawonn did not change the state of the law in Illinois, however, and have continued to reject motions in limine calling for a ban on tax instructions. See, e.g., Opio v. Wurr, 901 F.Supp. 1370, 1373-74 (N.D. Ill, 1995); see also Couch v. Village of Dixmoor, 2006 WL 3409153, at *2 (N.D.I1t Nov. 27, 2006);Nichols v. Johnson, 2002 WL 826482, at *1 (N.D. m. May 1, 2002). Thus, this Court concludes that it must follow federal law. It follows that argument or evidence on this issue is allowed as well. Cimaglia v. Union Pacific R.R., No. 06-3084, 009 WL499287 at **8 – 9 (C.D.Ill. Feb. 29, 2009).
Other motions in limine to consider include barring reference that the plaintiff may ask or may have asked for a greater amount of money than the plaintiff actually expects to receive (Kallas v. Lee, 22 lll.App.3d 496,317 N.E.2d 704 (1st Dist. 1974); Carlasare v. Wilhelmi, 134 Ill.App.3d 1, 479 N.E.2d 1073, 89lll.Dec. 67 (1st Dist. 1985)), barring reference that the plaintiff and the defendant have discussed the possibility of settling the plaintiff’s claim (Barkei v. Delnor Hospital, 176ll1.App.3d 681,531 N.E.2d 413, 126 lll.Dec. 118 (2d Dist. 1988)), barring any evidence concerning opinions not raised by the defendant’s experts in timely filed answers to S.Ct. Rule 213 interrogatories and in deposition testimony, and barring the defendants from calling witnesses other than those listed in interrogatory answers.
[6.7] Other Motions
Frequently, there are problems with the pleadings and other miscellaneous legal matters to be resolved at the outset of trial. Written motions pertaining to such matters are appropriate.
In addition, parties commonly file motions, usually uncontested, to exclude nonparty witnesses from attending the trial while other witnesses are testifying. E.g., People of State of Illinois v. Mack, 25 m.za 416, 185 N.E.2d 154 (1962).
The new lllinois Rules of Evidence cover the topic:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a person authorized by law to be present. Ill.R.Evid. 615.
On the plaintiff’s side in a wrongful death, the law is clear that “[t]he real party in interest cannot be excluded under an exclusionary order even though he is not named as a party.” 1 Robert S. Hunter, TRIAL HANDBOOK FOR ILLINOIS LAWYERS, CNIL §17.21, p. 253 (7th ed. 1997). See also Grant v. Paluch, 61 Ill.App.2d 247, 210 N.E.2d 35 (1st Dist. 1965). Therefore; in a wrongful-death case, the statutory beneficiaries, as real parties in interest, are entitled to attend the entire trial in addition to the personal representative of the deceased’s estate.
[6.8] Trial Briefs
Whether the rules require it or not, well-prepared trial lawyers usually supply the court with one or more trial briefs before the trial begins. Trial briefs can be particularly important in wrongful-death cases because these cases are less common than personal injury cases.
Usually, there is no set form for trial briefs. They range from a full treatment of the facts and law to short briefs on particular issues of law likely to arise during trial. While the lawyer has lived with the case for months or years, the judge is called on to make important rulings soon after his or her first introduction to the facts of the case. Consequently, trial briefs, like all presentations to the trial judge, should be concise, candid, and accurate. Liberal use of argument headings is a good practice, so that the judge may skim the brief and stay oriented to the main points. The brief should not dwell on obvious points of law. Contested points of law, on the other hand, should be explained in detail with citations to the crucial statutes and cases.
Trial briefs should not be written in haste just before trial. Instead, beginning with the first interview with the client and continuing through all stages of trial preparation, the important issues of law should be identified and organized.
Trial briefs in wrongful-death cases should specifically address the problems of the case. For example, if there will be no eyewitness testimony regarding the critical events, the plaintiff should prepare a brief explaining why the evidence is sufficient to withstand a motion for directed verdict. If the Dead-Man’s Act, 735 ILCS 5/8-201, is not waived, the court should be informed of this fact in a trial brief and persuaded that the case can be proved on that basis. When defending such a case, counsel should prepare a trial brief concerning the inapplicability of the Act or waiver. If at trial the plaintiff unintentionally waives the Dead-Man’s Act objection then argues he or she did not, the defense attorney will have a better chance of a favorable ruling on waiver if a strong trial brief prepares the judge to be on the alert for a waiver.
There is an advantage in some cases to separate trial briefs on each significant legal issue. Since opposing counsel may not anticipate all issues, the briefs can be used on an as-needed basis as issues arise during trial, without overeducating an unprepared opponent.
[6.9] Notices To Produce at Trial
Supreme Court Rule 237(b) states:
The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the trial of . . . documents or tangible things. . . If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his or her appearance at the trial that are just, including payment of his or her reasonable expenses. Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.
The notice to produce at trial can be used for exhibits as well as for compelling witnesses to appear for adverse examination. Pursuant to S.Ct. Rule 237(b), parties may also be required to bring witnesses under their control to lllinois from other states.
Attorneys should review their Rule 237 requests with opposing counsel and obtain responses on the record before jury selection begins. The court will usually not be present when this is done. In addition, lawyers should prepare any objections to the opponent’s notice to produce and be prepared to produce all responsive items and witnesses. Any remaining issues requiring rulings can be brought to the court’s attention at the conference before jury selection.
[6.10] Draft Jury Instructions
Trial lawyers should bring proposed jury instructions and verdict forms to the conference before jury selection, whether or not required by the rules. S.Ct. Rule 239(a) provides:
Whenever lllinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject should be simple, brief, impartial, and free from argument.
There are pattern jury instructions concerning damages in wrongful-death actions and the Dead-Man’s Act.
[6.11] Pretrial Memorandum
At the preliminary conference, the plaintiff should have available an up-to-date pretrial memorandum. A pretrial memorandum that succinctly states the basic facts, including theories of liability and a damages summary, is an excellent way to begin discussion of the case, even if the court elects not to discuss settlement.
The trial attorney must determine which exhibits will be offered at trial. Originals and sufficient copies should be pre-marked. While some courts require this and others do not, trial lawyers should pre-mark and exchange exhibits whether or not required to do so since this can help keep otherwise able advocates from bumbling with exhibits at trial. Good exhibit management from the start helps lawyers protect their credibility.
A strong visual presentation is at least as important in wrongful-death as in personal injury cases. Exhibits can range from expensive computer models and graphs to inexpensive blowups. All require thought and practice. Increasingly, use of video, digital imaging, and computer simulation is altering the way cases are tried. It is crucial that attorneys today understand and use current technology to benefit clients. While some courts require and are set up for the modern digital trial – and there are more of them every year – many courts do not yet require use of electronic imaging and lack the equipment to properly display it. But it is easier and less expensive than ever for trial attorneys to present evidence using digital tools, and use of these tools is especially helpful in wrongful-death cases. Going digital is no longer optional in wrongful-death and other high stakes litigation.
Approximately 75 percent of what people learn comes visually, and only about 10 percent of what we learn comes verbally. See, e.g., Thomas F. Parker, Applied Psychology in Trial Practice, 7 Def.L.J. 33 (1960). Twenty percent of information delivered visually is remembered after three days, while only 10 percent of information presented verbally is remembered after the same period of time. Yet 65 percent of information delivered both visually and verbally is remembered after three days. See, e.g., Stanley E. Preiser, Demonstrative Evidence in Criminal Cases, 3 Trial Dip1J. 30 (Winter 1980). Therefore, the importance of demonstrative exhibits cannot be overstated, and the trial team should determine well in advance of trial the types of demonstrative evidence to be used so that these exhibits can be prepared and reviewed for effectiveness long before a jury is seated.
Demonstrative evidence can be used if it is helpful to the jury and shows what it purports to show. E.g., Cisarik v. Palos Community Hospital, 144 Ill.2d 339, 579 N.E.2d 873, 162 Ill.Dec. 59 (1991). A trial court has the discretion to bar the use of demonstrative evidence that is inaccurate or would tend to mislead or confuse the jury. E.g., Gill v. Foster, 157 Ill.2d 304,626 N.E.2d 190, 193 Ill.Dec, 157 (1993). For example, in Barry v. Owens-Corning Fiberglas Corp., 282 Ill.App.3d 199, 668 N.E.2d 8, 217 Ill.Dec. 823 (1st Dist. 1996), a video taken during a surgical procedure was effectively used to illustrate the testimony of a thoracic surgeon and demonstrate abnormal lung tissue in a wrongful-death case arising out of asbestos exposure.
There are many other examples of the use of demonstrative evidence in wrongful-death cases. E.g., Stenger v. Germanos, 265 Ill.App.3d 942, 639 N.E.2d 179,203 Ill.Dec. 140 (1st Dist, 1994) (use of diagram to assist jury in visualizing scene of accident); Robles v. Chicago Transit Authority, 235 Ill.App.3d 121, 601 N.E.2d 869, 176 Ill.Dec. 171 (1st Dist, 1992) (drawing depicting interlock system); Grimming v. Alton & Southern Ry., 204 Ill.App.3d961, 562 N.E.2d 1086, 150 Ill.Dec. 283 (5th Dist, 1990) (chart depicting itemization of damages claimed during closing argument).
[6.13] Items Requested by the Court
In addition to the items suggested in §§6.5 – 6.12 above, it is mandatory that counsel determine any special items that the court may require. These items, obviously, should be provided. Some judges assist lawyers by providing written lists of their rules or preferences. Attorneys who have tried cases before the judge are also good sources of information. It is appropriate to ask the judge directly about any special procedures to be followed. It may also help to find out what experience handling wrongful-death cases, if any, the court has.
C. [6.14] Checklist of Issues To Resolve at the Conference
Some of the matters that may be covered at the conference before jury selection include:
- what the venire will be told in the court’s opening remarks;
- how voir dire will be conducted;
- the number of peremptory challenges that will be allowed;
- whether back-striking will be allowed;
- motions in limine;
- other necessary motions;
- rulings on all pending motions;
- whether use of exhibits during opening will be allowed;
- the court’s hours, procedures, and scheduling problems;
- whether the case can be settled;
- S.C!. Rule 237 compliance conference with opposing counsel, usually just before or just after the conference with the court;
- amendments to pleadings; and
A. [6.15] In General
To properly engage in voir dire, trial attorneys should begin with a clear concept of both the important traits of the ideal juror and the most feared traits. This knowledge, superimposed on a clear understanding of the rules, the judge’s style, and human nature, may suffice in some cases. Increasingly, however, trial attorneys are going further, employing psychologists and other professionals to assist during jury selection.
The process by which venire members are questioned to determine their suitability to serve as jurors in a given case is called “voir dire,” which is Law French for “to speak the truth.” BLACK’S LAW DICTIONARY, p. 1710 (9th ed, 2009). The manner in which attorneys may conduct a voir dire examination rests within the discretion of the trial judge. S.C!. Rule 234 states:
The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. Questions shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors.
See People of State of Illinois v. Garstecki, 234 Ill.2d 430, 917 N.E.2d 465, 334 Ill.Dec. 639 (2009).
Wrongful-death actions invariably involve substantial damage claims. Accordingly, when a jury demand has been made, the wrongful-death action will be tried before a jury of 12. See 735 ILCS 5/2-1105(b). The court may direct that an additional one or two people be selected as alternate jurors to be available to replace jurors who become unable to serve as jurors before the time the verdict is rendered. 735 ILCS 5/2-1106(b). To avoid the need for alternates, parties sometimes agree to waive alternates and stipulate that as few as ten remaining jurors at the conclusion of the case may decide it by unanimous verdict.
Implicit biases present a huge problem all counsel should be aware of. In a new article, United States District Court Judge Mark Bennett shed light into the dark closet of this the implicit bias problem starting with its definition:
Implicit biases are the plethora of fears, feelings, perceptions, and stereotypes that lie deep within our subconscious, without our conscious permission or acknowledgement. Indeed, social scientists are convinced that we are, for the most part, unaware of them. As a result, we unconsciously act on such biases even though we may consciously abhor them. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias Jury Selection: The Problems of Judge Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harvard L. & Pol’y Rev. 149 (2010).
This breaking news topic goes beyond the scope of this chapter. The reader is referred to the full text of Judge Bennett’s article for more in depth study, available at http://hlpronline.com/wordpress/wp-content/uploads/2010/02/bennett_batson.pdf.
A judge’s views and practices along with the local rules should be reviewed before voir dire. For example, Cook County Circuit Court Rule 5.3 provides:
(a) Order of calling jurors- Prospective jurors who are assembled in a central jury room shall be called into the jury box in the order in which they were drawn from the jury assembly room.
(b) Examination of service cards – The attorney for any party may examine the official service record cards of prospective jurors before or during their interrogation.
B. [6.16] Preparation
Preparing for voir dire in wrongful-death cases is similar to preparing for jury selection in personal injury cases; however, wrongful-death cases often involve substantial claims for noneconomic damages, and these may be poorly received by jurors inclined toward tort reform. For the plaintiff, removing such jurors for cause can be a challenge, and sometimes more peremptory challenges are needed than are available. And conditioning such jurors to be fair is easier said than done.
Trial lawyers should think long and hard about the types of people likely to view their case favorably or unfavorably. Then they must determine the questions needed to solicit the information and to condition jurors favorably to their case. Trial lawyers must also have a method to keep track of each of the venire members and their responses. Many attorneys have voir dire transcribed so that any error during voir dire can be preserved.
A detailed discussion on voir dire is beyond the scope of this chapter; for that, see Robert Marc Chemers, Ch. 2, The Jury: The “Right” to It and the Selection of It, ILLINOIS CIVIL PRACTICE: TRYING THE CASE (IICLE®, 2009). Nonetheless, the following is a brief list of some of the topics that, depending on the issues in the case, counsel may wish to explore (directly or indirectly) during voir dire:
- knowledge of or predisposition concerning any of the attorneys, law firms, or parties, the decedent, the personal representative, the surviving spouse, or next of kin;
- knowledge of or predisposition concerning any witnesses;
- knowledge, opinions, or predisposition regarding any facts or issues in the case;
- exposure to pretrial publicity;
- attitudes regarding the subject matter and relevant disciplines;
- right of the parties to file suit and to defend suit;
- marital status;
- family status;
- employment history Gobs, employers, dates, descriptions, and any knowledge or attitudes regarding the parties, subject matter, and issues as a result of employment);
- spouse or family members’ employment;
- any friend or family member who is a lawyer or in a field relevant to the case (e.g., medicine, engineering, or the defendant’s industry);
- educational background;
- activities and hobbies;
- organizations and affiliations;
- prior jury experience;
- prior involvement in lawsuits as a party or witness;
- pertinent health conditions of the juror and of family and friends;
- accidents or injuries;
- death of family members and friends;
- papers and magazines read and television shows watched;
- feelings regarding damages; and
- feelings regarding the legal theories likely to be encountered in the trial.
There are many views on the goals of jury selection, some seemingly in conflict with the rules. For example, the law is clear that the overriding focus of voir dire is the selection of impartial jurors. Scully v. Otis Elevator Co., 2 Ill.App.3d 185,275 N.E.2d 905 (1st Dist. 1971). It is not the purpose of voir dire to indoctrinate or pre-educate the juror, obtain a pledge as to how a juror would decide under a given set of facts, or determine which party a juror favors in a case. Gasiorowski v. Homer, 47 I1I.App.3d 989, 365 N.E.2d 43, 7 Ill.Dec. 758 (1st Dist. 1977); Christian v. New York Central R.R., 28 IlI.App.2d 57, 170 N.E.2d 183 (4th Dist. 1960). Notwithstanding this, one author has observed:
In addition to gathering basic information about jurors and their attitudes, [successful trial lawyers] (1) set the tone for the trial, (2) introduce concepts and evidence and condition the jurors for things to follow at trial, (3) obtain public commitments from jurors favorable to their cases, (4) use language that places their clients, their witnesses, and other relevant facets oftheir case in a favorable light, (5) rehearse the arguments they will use at trial, (6) refute opposition arguments, (7) enhance their credibility, and (8) create jury purpose. In other words, the period of voir dire becomes a preview of the entire trial, preparing jurors for what will follow and creating an atmosphere highly favorable to [counsel’s] case. Robert V. Wells, SUCCESSFUL TRIAL TECHNIQUES OF EXPERT PRACTITIONERS, p. 84 (1988).
Can this seeming conflict be harmonized? Perhaps not, but trial lawyers certainly must ferret out biased or prejudiced jurors who would be unable to return a verdict favorable to the client due to bias or prejudice. In this regard, it has sometimes been said that voir dire is more a process of jury deselection – eliminating jurors that may be inclined to find against one’s client – than of jury selection. See Hon. Ron Spears, Jury Deselection: You don’t pick who serves on your jury – you pick who doesn’t, 93 Ill.B.J. 420 (2005). The critical question, of course, is how to do this.
An example of a bias some jurors have exhibited in wrongful-death cases is a belief that it is wrong for a family to seek monetary damages for noneconomic loss. For example, in Michael v. Kowalski, 813 S.W.2d 6 (Mo.App. 1991), a case that involved the wrongful death of a young adult survived by his parents in which only $100,000 in damages was awarded, one of the jurors said after the verdict she felt it was wrong to seek money damages for the loss of a son, and two others said it was wrong to seek monetary compensation in a wrongful-death case such as the one presented. Yet during voir dire this prejudices did not come out. For the plaintiff, it is crucial to ask appropriate questions and follow up to make sure that jurors such as these are not allowed to sit. Biases must be carefully rooted out. After a bad verdict is no time for jurors biases to first come to light.
A frequent source of litigation involving voir dire in wrongful-death cases is whether the fact a decedent’s surviving spouse has remarried may be mentioned. E.g., Mulvey v. Illinois Bell Telephone Co., 53 m.2d 591, 294 N.E.2d 689 (1973) (fact of remarriage introduced by defense counsel in voir dire; defense verdict upheld against claim of error by plaintiff even though court acknowledged fact of remarriage would not have been admissible). In Mulvey, the majority of the court acknowledged that “there may be cases in which errors which go to the question of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury’s decision on the issue of liability. However, we do not believe this to be such a case.” 294 N.E.2d at 694.
Of course, Mulvey was decided before loss of consortium and loss of society were recognized as elements of the pecuniary loss suffered by the surviving spouse of a person wrongfully killed. Elliott v. Willis, 92 m.2d 530, 442 N.E.2d 163, 65 Ill.Dec, 852 (1982). It has been held that the fact of remarriage is relevant in loss-of-spousal-consortium claims. Martin v. Illinois Central Gulf R.R., 237 Ill.App.3d 910, 606 N.E.2d 9, 179 Ill.Dec. 177 (1st Dist. 1991); Dotson v. Sears, Roebuck & Co., 157 Ill.App.3d 1036, 510 N.E.2d 1208, 110 Ill.Dec. 177 (1st Dist. 1987); Carter v. Chicago & Illinois Midland Ry., 130 m.App.3d 431,474 N.E.2d 458,85 Ill.Dec. 730 (4th Dist. 1985). Cf Simmons v. University of Chicago Hospitals & Clinics, 162 m.za I, 642 N.E.2d 107, 204 Ill.Dec. 645 (1994) (acknowledging principle). If loss of society is waived by the surviving spouse, the fact of remarriage should not be admissible.
C. [6.17] Challenges
The court or any party may challenge a juror for cause. If a prospective juror has a physical impairment, the court shall consider the juror’s ability to perceive and appreciate the evidence when considering a challenge for cause. 735 ILCS 5/2-1105.1. There are several statutory grounds for challenging a petit venire member for cause, including not being a United States citizen, not being an inhabitant of the county, being under the age of 18, not being free from all legal exception, not being of fair character, not being of approved integrity, not being of sound judgment, not being well-informed, not being able to understand the English language, not being one of the regular panel, having served as a juror on the trial of a cause in any court in the county within one year previous to the time the individual is being offered as a juror, and being a party to the pending suit. See 705 ILCS 305/2, 305/14.
There are several other bases for which a potential juror may be but is not necessarily required to be excused for cause, including prior jury service on an earlier trial in the same case, being affiliated with or related to one affiliated with an insurance company of the defendant, having a fixed opinion as to the merits of the case or any material issue involved in the case, having bias or prejudice against or in favor of a party, having a familial relationship with a party, and being a stockholder, officer, agent, employer, or employee of a party.
In addition to challenges for cause, each side is allotted peremptory challenges. A peremptory challenge provides the right to challenge a certain number of jurors without showing any cause or reason. There are some constitutional limits, however, on the exercise of peremptory challenges. See, e.g., Tucker v. Illinois Power Co., 217 Ill.App.3d 748, 577 N.E.2d 919, 160 Ill.Dec. 594 (5th Dist. 1991) (principles of Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986), precluding use of peremptory challenges to exclude jurors on basis of race, applied to customer’s civil action against gas utility based on alleged violations of Illinois Public Utilities Act).
Counsel must know the number of peremptory challenges he or she is allotted in it case. In a civil action pending in state court,
[e]ach side shall be entitled to 5 peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed 3, on account of each additional party on the side having the greatest number of parties. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court.
If alternate jurors are called each side shall be allowed one additional peremptory challenge, regardless of the number of alternate jurors called. The additional peremptory challenge may be used only against an alternate juror, but any unexercised peremptory challenges may be used against an alternate juror. 735 ILCS 5/2-1106.
In federal court, each party is entitled to three peremptory challenges. The court may consider several defendants or several plaintiffs as a single party or may allow additional peremptory challenges. See 28 U.S.C. §1870.
Because the plaintiff’s personal representative is treated as one party even if there are several next of kin (e.g., Johnson v. Village of Libertyville, 150 Ill.App.3d 971, 502 N.E.2d 474, 104 Ill.Dec. 211 (2d Dist. 1986), rev’d on other grounds, Mio v. Alberto-Culver Co., 306 ll1.App.3d 822, 715 N.E.2d 309, 239 Ill.Dec. 864 (2d Dist. 1999); Rodgers v. Consolidated R.R., 136 1ll.App.3d191, 482 N.E.2d 1080, 90 1ll.Dec. 797 (4th Dist. 1985)), it is reasonable to conclude in wrongful-death cases each next of kin is not a separate party for allocation of challenges.
D. [6.18] “Back-Striking”
In Illinois state court jurors are picked in panels off our. See 705 ILCS 305/21. By tendering a panel, the party is indicating that those four prospective jurors are acceptable to that party. In the event that the opposing party exercises a challenge concerning any member of the previously tendered panel, a “new” panel is formed. The new panel will have some members from a panel previously accepted. “Back-striking” occurs when a party that has tendered a panel receives the panel back and then exercises a challenge in relation to a prospective juror that had previously been accepted.
Back-striking is not favored by many courts; however, the rules do not forbid it. See Needy v. Sparks, 51 Ill.App.3d 350, 366 N.E.2d 327, 339 – 340, 9 Ill.Dec. 70 (1st Dist. 1977). But because some judges do not approve of back-striking, it is important that counsel determine whether back striking will be allowed before attempting to back-strike a juror. See People of State of Illinois v. Page, 196 Ill.App.3d 285, 553 N.E.2d 753, 143 Ill.Dec. 46 (3d Dist. 1990) (trial court did not abuse its discretion by refusing to allow defense counsel to use peremptory challenge to back strike juror); People of State of Illinois v. Moss, 108 Ill.2d 270, 483 N.E.2d 1252, 91 Ill.Dec. 617 (1985) (prohibition against back-striking did not deny or impair defendant’s right of peremptory challenge).
[6.19] Opening Statements
Opening statements are “intended generally to inform the jurors concerning the nature of the action and the issues involved [and] to give them an outline of the case so that they can better understand the testimony.” Gillson v. Gulf, Mobile & Ohio R.R., 42 Ill.2d 193, 246 N.E.2d 269, 272 (1969). Therefore, counsel has the right to “summarily outline what he expects the evidence admissible at the trial will show.” Id. However, “no statement may be made in opening which counsel does not intend to prove or cannot prove.” Id., citing Colmar v. Greater Niles Township Publishing Corp., 13 Ill.App.2d 267, 141 N.E.2d 652 (1st Dist. 1957). Statements made by counsel in opening statement are improper if they are not in good faith and are prejudicial. Surestaff, Inc. v. Open Kitchens, Inc., 384 Ill.App.3d 172, 892 N.E.2d 1137, 1140, 323 Ill.Dec. 145 (1st Dist. 2008).
Trial lawyers have considerable latitude when making an opening statement, and the law is settled that “[q]uestions as to the prejudicial effect of remarks made during opening statement and closing argument are within the discretion of the trial court, and determinations as to such questions will not be overturned absent a clear abuse of discretion.” Simmons v. Garces, 198 Ill.2d 541, 763 N.E.2d 720,737,261 Ill.Dec. 471 (2002).
The court will make clear to the jury what the purpose and limits of opening statements are. Therefore, trial lawyers should not waste their valuable time in opening statements repeating such matters. Instead, the opening statement provides the advocate with an excellent opportunity to tell the jury the “story” the evidence tells in a favorable light. Since trials are credibility contests, it is crucial that there be no exaggeration in the opening. Many good cases have been lost by a lawyer’s embellishment.
Dr. David Ball provides these general guidelines for lawyers making opening statements: “[S]tay on topic, no wasted beginnings, no wasted words, no wasted topics, [don’t ignore what the jurors think they need to know], go slowly, do not be an advocate, and don’t ask the jurors to take your word for anything (they won’t).” David Ball, DAVID BALL ON DAMAGES: THE ESSENTIAL UPDATE: A PLAINTIFF’S ATTORNEY’S GUIDE FOR PERSONAL INJURY AND WRONGFUL DEATH CASES, pp. 120- 121 (2d ed. 2005).
Some believe that cases are won or lost in the opening statements. Therefore, careful preparation and presentation of opening statements are very important. There are many excellent sources of information concerning opening statements. E.g., Mark L.D. Wawro, Starting on the Right Foot: Effective Opening Statements, 25 Litig., No. I, 10 (Fall 1998); Thomas A. Mauet, FUNDAMENTALS OF TRIAL TECHNIQUES, p. 61 (6th ed. 2007). See also Nat P. Ozmon and Telly C. Nakos, Ch. 3, Opening Statement, ILLINOIS CIVIL PRACTICE: TRYING THE CASE (IICLE®,2009).
Copies of the opening statements that were given on December 1, 2009 in an air crash wrongful-death damages trial are set out in §6.44 below.
Presentation Of The Evidence
A. [6.20] Illinois Rules of Evidence
On January 1, 2011, the Illinois Rules of Evidence went into effect, creating for the first time in Illinois a uniform and consolidated evidence code. Modeled after the Federal Rules of Evidence, the Illinois Rules provide an efficient and systematic guide for judges and attorneys charged with researching and identifying evidentiary rules. Prior to the adoption of the new rules, the law of evidence in Illinois was scattered amongst Supreme Court Rules, statutes, and caselaw. The lack of uniformity drove former Illinois Supreme Court Chief Justice Thomas Fitzgerald to appoint the Special Supreme Court Committee on Illinois Evidence in November, 2008, with the goal set at codifying the state’s rules of evidence. Comprised of judges, attorneys, and legal scholars, the Committee submitted drafts for public comment and commentary, and on September 27, 2010, the court adopted the finalized code recommended by the committee.
While not as numerous as their federal counterpart, the Illinois Rules of Evidence follow the subject-matter sequence and numbering of the Federal Rules almost identically. The commentary within the rules provides short explanations of the evolution of some of the rules. The committee explains that, in the process of codifying the law of evidence in lllinois, it incorporated current law that had been clearly decided by Illinois courts within the last half century. Additionally, the committee incorporated 14 modernizations in which it was determined that the updates would be beneficial to trial proceedings in Illinois and not in conflict with current state statutes or recent court decisions. While the court granted the authority to the committee to establish and incorporate the new rules, it made it clear in Ill.R.Evid 101: “A statutory rule of evidence is effective unless in conflict with a rule or decision of the Illinois Supreme Court.”
In codifying this succinct and systematic set of evidence rules, the Supreme Court has given trial attorneys and Illinois courts alike a simpler code to abide by, which should avoid confusion and result in a more efficient trial process.
B. [6.21] Trial Technology
In the technologically advanced world we live in, it is not surprising that high tech tools have infiltrated the courtroom. Courtrooms are more modem and trial attorneys are increasingly (and very wisely) using today’s visual technologies to enhance presentations to the jury. And while technology will never replace proper trial preparation or a well-crafted argument, an attorney must not ignore the significant benefits that are associated with the use of these powerful trial tools.
Proper use of digital technology can transform a complicated legal concept into an easier-to process idea for the jury. By deciding to present a visual breakdown of a theory or argument using a program such as PowerPoint, an attorney can pre-plan exactly what type of information he or she chooses to relay and how and when to relay it. During opening and closing arguments the attorney, with the push of a button or click of a mouse, can repeatedly reinforce a concept, strategically present a photograph, or make connections between facts or between law and facts that are more likely to be remembered. Lasting visual impressions are more likely to be recalled and discussed during deliberations.
C. Issues Associated with Establishing or Refuting Liability
[6.22] Use of Circumstantial Evidence
One of the fundamental differences between wrongful-death and personal injury trials is that in death cases the testimony of the injured person is not available at trial. There may be no eyewitness testimony to establish how the death occurred. Such testimony is not required; circumstantial evidence can be sufficient. E.g., Mort v. Walter, 98 Ill.2d 391, 457 N.E.2d 18, 21, 75 Ill.Dec. 228 (1983); Mayfield v. City of Springfield, Illinois, 103 lll.App.3d 1114, 432 N.E.2d 617, 59 lll.Dec. 831 (4th Dist. 1982). I.P.I. – Civil No. 3.04 provides:
A fact or a group of facts may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.
At times, circumstantial evidence can even be more persuasive than an eyewitness account. See, e.g., Oudshoorn v. Warsaw Trucking Co., 38 TIl.App.3d 920, 349 N.E.2d 648 (1st Dist. 1976); Lobravico v. Checker Taxi Co., 84 Ill.App.2d 20,228 N.E.2d 196 (1st Dist. 1967).
In Brawner v. City of Chicago, 337 lll.App.3d 875, 787 N.E.2d 282, 272 Ill.Dec. 467 (1st Dist. 2003), the court held admissible circumstantial evidence establishing that police officers who shot the fleeing decedent had heard that the decedent had unlawfully restrained a person. The court also found that expert testimony indicating that the decedent’s conduct was consistent with that of a person who had taken cocaine was also relevant and admissible because the testimony illustrated why the police believed that their lives were endangered when they shot the decedent.
In establishing negligence by use of circumstantial evidence, the courts do not ask a plaintiff to prove the impossible. Rather, courts allow use of circumstantial evidence whenever an inference may reasonably be drawn from it. Mort, supra. In Mort, a child was struck by a car and severely injured. There were no eyewitnesses to the accident. The court found the circumstantial evidence sufficient to raise an inference of negligence even in the absence of direct testimony.
Since there sometimes are no occurrence witnesses, the law requires only the highest proof of which the particular case is susceptible. Campbell v. Ragel, 7 Ill.App.2d 301, 129 N.E.2d 451 (4th Dist. 1955). In the following wrongful-death cases, circumstantial evidence was sufficient to prove an important element of the case. National Bank of Bloomington v. Pickens, 8 Ill.App.3d 58, 289 N.E.2d 64 (4th Dist. 1972) (decedent struck by vehicle and killed; court found circumstantial evidence sufficient to establish cause of death in absence of medical evidence); Hamel v. Delicate, 104 Ill.App.2d 241, 244 N.E.2d 401 (5th Dist. 1968) (flagman directing traffic struck and killed; court held circumstantial evidence sufficient to establish cause and time of death); Bennis v. Chicago Transit Authority, 33 Ill.App.2d 334, 179 N.E.2d 421 (1st Dist. 1961) (police officer struck and killed by CTA train; court held exercise of due care can be established by use of circumstantial evidence).
In the following wrongful-death cases, circumstantial evidence was insufficient to prove an important element of the case. Majetich v. P.T Ferro Construction Co., 389 Ill.App.3d 220, 906 N.E.2d 713, 329 Ill.Dec. 515 (3d Dist. 2009) (insufficient evidence to connect decedent’s fall outside strip mall to defendants’ recent replacement of the parking lot pavement); Mann v. Producer’s Chemical Co., 356 Ill.App.3d 967, 827 N.E.2d 883, 293 Ill.Dec. 2 (1st Dist. 2005) (insufficient evidence decedent relied on driver’s wave in continuing to cross street); Leavitt v. Farwell Tower Ltd Partnership, 252 Ill.App.3d 260,625 N.E.2d 48,55, 192 Ill.Dec. 88 (1st Dist. 1993) (not reasonable to infer decedent entered elevator shaft on second floor due to defendant’s failure to have automatic door closure devices); Kellman v. Twin Orchard Country Club, 202 Ill.App.3d 968,560 N.E.2d 888,148 Ill.Dec. 291 (1stDist. 1990) (decedent fell in shower stall at country club and died from injuries; court found circumstantial evidence insufficient to raise inference of defendant’s negligence); Mclnturff v. Chicago Title & Trust Co., 102 Ill.App.2d 39, 243 N.E.2d 657 (1st Dist. 1968) (janitor fell down flight of stairs and died from injuries; circumstantial evidence that decedent was careful man exercising due care just before injury was insufficient to raise inference of defendant’s negligence).
[6.23] Evidence of Decedent’s Careful Habits
Rule 406 of the Illinois Rules of Evidence governs the admissibility of habit and routine practice:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
The Committee Commentary to this rule states:
Rule 406 confirms the clear direction of prior Illinois law that evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Committee Commentary to Illinois Rules of Evidence,(3) Modernization.
It would now seem clear, under Il1.R.Evid. 406, “the habit of a [deceased] person … , whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the [deceased] person … on a particular occasion was in conformity with the habit.” Thus proof of a deceased’s careful habits, if relevant, appears to be allowed, subject to the caveat that this proof does not, ipso facto establish negligence or proximate cause in a wrongful death case. E.g. Strutz v. Vicere, 389 Il1.App.3d 676, 906 N.E.2d 1261, 329 Ill.Dec. 650 (1st Dist. 2009). In Strutz, the trial court granted the defendants’ motion for summary judgment on the issue of proximate cause, finding that the plaintiff failed to offer any evidence showing that the defendants’ alleged negligence caused the decedent’s fall down the stairs. On appeal, the plaintiff argued that evidence of the decedent’s careful habits and training as a paramedic entitled the plaintiff to the presumption that the decedent was exercising due care for his safety at the time he fell. The appellate court affirmed the lower court’s ruling, noting that while evidence of the decedent’s careful habits could be appropriate to refute an allegation of contributory negligence, such evidence had no bearing on whether there was proper evidentiary support for the element of proximate cause.
If evidence of the decedent’s careful habits also proves the decedent’s character, such evidence may also be admissible on the loss-of-society issue. E.g., Cooper v. Chicago Transit Authority, 153 Ill.App.3d 511, 505 N.E.2d 1239, 1246, 106 Ill.Dec. 448 (1st Dist. 1987).
However, a decedent’s personal representative should be aware that the protections offered by the Dead-Man’s Act, discussed in great detail in §§6.24 – 6.29 below, can be waived if the representative elects to introduce testimony of the decedent’s careful habits in relation to the events leading to the death. In such a case, ”the adverse party is rendered competent to testify to the event.” Yetton v. Henderson, 190 Ill.App.3d 973,546 N.E.2d 1000, 1004, 137 Ill.Dec. 887 (3d Dist. 1989).
Under prior law a deceased’s careful habits could only be established through reputation testimony and proof of specific instances of conduct was not allowed. Michael H. Graham, GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE, §406.2, p. 289 (10th ed. 2010). It is unclear if this is still true. Compare Ill.R.Evid. 405, 406, and 608.
The Dead-Man’s Act
a. [6.24] In General
Ill.R.Evid. 101 states in part that “[a] statutory rule of evidence is effective unless in conflict with a rule or a decision of the lllinois Supreme Court.” Explaining this principle in the Committee Commentary preceding the lllinois Rules of Evidence the Committee stated “[i]t is important to note that the lllinois Rules of Evidence are not intended to abrogate or supersede any current statutory rules of evidence.” One such statute is the Dead-Man’s Act, 735 ILCS 5/8-201, which deals with the competency of certain witnesses. Moreover, Ill.R.Evid. 601 states “[e]very person is competent to be a witness, except as otherwise provided by these rules, by other rules prescribed by the Supreme Court, or by statute.”
The applicability of the Dead-Man’s Act in federal court wrongful-death actions, however, is more complex. Rule 601 of the Federal Rules of Evidence states that “[e]very person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.” Under this rule, the Dead-Man’s Act applies in federal diversity cases but does not apply in federal cases governed by federal law. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1051 (7th Cir. 1977); Cooper v. City of Rockford, No. 06 C 50124, 2010 WL 3034181 (N.D.Ill. Aug. 3, 2010).
Although the Dead-Man’s Act usually does not affect a personal injury action, it can have a profound effect on trial strategy and practice in wrongful-death actions. The wrongful-death practitioner must be thoroughly familiar with the Act and must consider its potential impact from the time the action is commenced. The Act provides in part:
In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability. 735 ILCS 5/8-201.
Consider, for example, an automobile crash in a controlled intersection with both drivers claiming a green light, no evidence of a light malfunction, and no other witnesses. If both parties were alive, each would provide his or her own version of what happened. But if one of the drivers was killed in the wreck and the personal representative brought a wrongful-death action, the Act might preclude the surviving party from testifying that the light was green when he or she entered the intersection even though this would be the best available proof of who ran the red light. Yet if the personal representative were to object at trial, the surviving driver’s testimony might be barred by the Act.
However, the Act will not bar testimony of other eyewitnesses who are not parties and are not directly interested in the lawsuit. Similarly, pictures of the scene or testimony (even by the defendant) about what happened before the vehicle reached the view of the decedent or after it was out of the decedent’s view would be admissible. Moreover, if the personal representative offers any evidence on a conversation or event, the defendant too may testify about the same conversation or event.
The purpose of the Dead-Man’s Act is to protect decedents’ estates from fraudulent claims and to equalize the parties’ positions when giving testimony by removing the temptation of a survivor to testify falsely. See, e.g., Balma v. Henry, 404 Ill.App.3d 233, 935 N.E.2d 1204, 343 Ill.Dec. 976 (2d Dist. 2010); Gunn v. Sobucki, 216 lll.2d 602, 837 N.E.2d 865, 297 Il1.Dec. 414 (2005). Despite the laudable motive behind the Act, it exacts a high price – exclusion of relevant evidence.
The Dead-Man’s Act has been sharply criticized:
The Dead Man’s Act manifests the cynical view that a party will lie when she cannot be directly contradicted and the unrealistic assumption that jurors, knowing the situation, will believe anything they hear in these circumstances. While motivated by the laudable desire to protect decedent’s and legally disabled person’s assets from attack based on perjured testimony, Wells v. Enloe, 282 Ill.App.3d 586, 218 Ill.Dec. 425, 669 N;E.2d 368 (1996), the validity of this approach is questioned with vigor; the modern trend is to remove the disqualification. 2 Wigmore, Evidence §§578, 578a (Chadbourn rev. 1979). In any event, it is by far the most frequent source of controversy over the competency of witnesses. Without considering the effect of the vast amount of litigation generated by the Dead Man’s Act, it is felt that the Act should be abrogated on the ground that this surviving relic of the common law disqualification of parties as witnesses leads to more miscarriages of justice than it prevents. Accord Smith v. Haran, 273 Ill.App.3d 866, 878, 210 Ill.Dec. 191, 199, 652 N.E.2d 1167, 1175 (1995)(“Because there is room for disagreement in this area (see
for example, the dissent to this opinion) and because the Act generates so much controversy and litigation, many commentators have suggested that the time has come for the legislature to repeal or modify the Dead Man’s Act, as have more than half the States. (See, Kahn, Repeal of Dead Man’s Act Advocated, 55 Ill.B.J. 430 (1967); Barnard, The Dead Man’s Act Rears Its Ugly Head Again, 72 Ill.B.J. 420 (1984); Barnard, The Dead Man’s Act is Alive and Well, 83 Ill.B.J. 248 (1995).)”). See generally Matter of Estate of Rollins, 269 Ill.App.3d 261, 206 Ill.Dec. 774, 645 N.E.2d 1026 (1995). Michael H. Graham, CLEARY AND GRAHAM’S HANDBOOK OF ILLINOISEVIDENCE §606.1,p. 335 (8th ed. 2004).
Notwithstanding these views, the Dead-Man’s Act is alive and well in Illinois. See, e.g., Balma, supra; Gunn, supra; Hoem v. Zia, 159 m.2d 193, 636 N.E.2d 479,201 Ill.Dec. 47(1994). Courts in Illinois do not have discretion to ignore it, and trial attorneys must cope with it. The Act is a rule concerning the competency of witnesses and not the admissibility of evidence. See Creighton v. Elgin, 387 Ill. 592, 56 N.E.2d 825 (1944). In other words, the Act renders the adverse party incompetent to testify not generally, but only as to conversations and events occurring in the presence of the deceased.
The Dead-Man’s Act extends protection to a “party [who] sues or defends as the
representative of a deceased person or person under a legal disability.” 735 ILCS 5/8-201. Accordingly, the Dead-Man’s Act objection belongs to the personal representative of the deceased. E.g., Moran v. Erickson, 297 Ill.App.3d 342, 696 N.E.2d 780, 231 Ill.Dec. 484 (1st Dist 1998); Harry W Kuhn, Inc. v. State Farm Mutual Automobile Insurance Co., 201 Ill.App.3d 395, 559 N.E.2d 45, 51, 147 Ill.Dec. 45 (1st Dist. 1990). The representative has the option of objecting to or allowing the evidence to be adduced. In other words, even though a witness is incompetent under the Act, he or she may be called by the party who is protected under the Act to testify about the event or conversation. Harry W Kuhn, Inc., supra, 559 N.E.2d at 51 (“The only parties entitled to object to the testimony of an interested witness under this statute are adverse parties suing as representatives of the deceased or incompetent persons.”). Accordingly, in a wrongful-death action, the Act can work to the benefit of the plaintiff only unless the defendant also died before trial, because the Act cannot be used by a living defendant to bar evidence. When a defendant is deceased, on the other hand, his or her representatives may assert the objection as to testimony of codefendants or plaintiffs with interests adverse to the estate. 735 ILCS 5/8-201.
b. [6.25] Incompetent Witnesses
The only testimony barred by the Dead-Man’s Act is that of an “adverse party or person directly interested in the action.” 735 ILCS 5/8-201. This interest is determined by the substance of the action, not by the pleadings or status of the parties to the suit. See Ackman v. Potter, 239 Ill, 578, 88 N.E. 231, 233 (1909). A witness is a person “directly interested in the action” if, as a direct and immediate result of the judgment, he or she will reap pecuniary gain or suffer pecuniary loss. See Harry W Kuhn, Inc. v. State Farm Mutual Automobile Insurance Co., 201 Ill.App.3d 395, 559 N.E.2d 45,51, 147 Ill.Dec. 45 (1st Dist. 1990).In the context of a wrongful death action, the defendant generally is the adverse party whose competency may be subject to objection under the Act. As stated in §6.24 above, when one or more defendants are deceased and represented by their personal representatives, the defendants may raise the Dead-Man’s Act objection as to competency of the decedents’ personal representatives or of other interested persons. The testimony of a defendant is incompetent against an administrator codefendant because it is to the defendant’s advantage to have the estate held liable. See Mernick v. Chiodini, 12 lli.App.2d 249,139 N.E.2d 784 (4th Dist. 1956).
If a witness is disqualified under the Dead-Man’s Act, the witness’ spouse is also incompetent to testify as to the same matters. See Babcock v. McDonnell, 105 Ill.2d 267, 473 N.E.2d 1316, 1319, 85 Ill.Dec. 511 (1985). The disqualification of the spouse continues after dissolution of the marriage. See Hann v. Brooks, 331 Ill.App. 535, 73 N.E.2d 624, 629 (2d Dist. 1947). The child of a person with an adverse economic interest to the decedent is not usually disqualified: For example, the minor son of the defendant in a wrongful-death action was held competent to testify in Bernardi v. Chicago Steel Container Corp., 187 Il1.App.3d 1010, 543 N.E.2d 1004, 1010, 135 Il1.Dec. 436 (Ist Dist. 1989). See also Hughes v. Medendorp, 294 Ill.App. 424, 13 N.E.2d 1015 (3d Dist. 1938); Williams v. Garvin, 389 Ill. 169, 58 N.E.2d 870 (1945). But see Kamberos v. Magnuson, 156 Ill.App.3d 800, 510 N.E.2d 112, 109 Ill.Dec. 491 (1st Dist. 1987) (child of person adverse is incompetent when parent died, leaving child with direct rather than contingent economic interest).
The Dead-Man’s Act renders incompetent only the adverse party or one with a direct interest in the outcome. The Act does not bar anyone else from testifying about conversations or events occurring in the presence of the decedent. Indeed, an admission made by a party during his or her lifetime may be testified to by persons who do not have a direct interest in the action. See, e.g., Clifford v. Schaefer, 105 Ill.App.2d 233, 245 N.E.2d 49 (1st Dist. 1969) (admission to police officer). Thus, counsel’s investigation and discovery must be directed toward identifying others who have witnessed the event or conversation as well as other evidence such as tape recordings, pictures, etc.
As discussed in §6.29 below, the testimony of an agent or employee of a party is not rendered incompetent by the Dead-Man’s Act unless the agent or employee is a named party.
c. [6.26] Incompetent Subjects
The Dead-Man’s Act is not an absolute bar rendering the witness generally incompetent to testify as to any matter. Manning v. Mock, 119 Ill.App.3d 788, 457 N.E.2d 447, 454, 75 Ill.Dec. 453 (4th Dist. 1983). Instead, the bar applies only to “conversations” and “events” occurring in the decedent’s presence. E.g., Malavolti v. Meridian Trucking Co., 69 Ill.App.3d 336, 387 N.E.2d 426, 432, 25 Ill.Dec. 770 (3d Dist. 1979). Additionally, the Act only bars evidence that the decedent could have refuted had he or she survived; testimony related to evidence of facts that the decedent could not have refuted is not barred by the Dead-Man’s Act. Balma v. Henry, 404 Ill.App.3d 233, 935 N.E.2d 1204, 343 Ill.Dec. 976 (2d Dist. 2010). Thus in Balma, the court found barring all evidence of an “accident” was an overly broad application of the Act. And in Brown v. Arco Petroleum Products Co., 195 Ill.App.3d 563, 552 N.E.2d 1003, 142 Ill.Dec. 262 (1st Dist. 1989), although a truck driver’s testimony concerning whether he stopped at a stop sign was barred, he was allowed to testify concerning the approach to the stop sign. There was no evidence that the decedent could have observed the approach; therefore, the decedent could not have refuted this testimony. In essence, the approach did not occur in the presence of the deceased. Thus, the Act was inapplicable. See also Balma, supra. Similarly, even an incompetent witness may testify concerning events after the death of the decedent. Swirski v. Darlington, 369 Ill. 188, 15 N.E.2d 856 (1938).
d. [6.27] Exceptions
There are four exceptions to the Dead-Man’ s Act that render it inapplicable:
(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.
(b) If the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.
(c) Any testimony competent under Section 8-401 of this Act [735 ILCS 5/8-401], is not barred by this Section.
(d) No person shall be barred from testifying as to any fact relating to the heirship of a decedent. 735 ILCS 5/8-201.
Of these exceptions, only the first three are of much interest in wrongful-death litigation.
The first and most important exception applies when the representative adduces testimony concerning an otherwise protected conversation or event. If any person testifies on behalf of the representative to any conversation or to any event that took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted into evidence.
Thus, if any witnesses testify on behalf of the personal representative concerning an event or conversation, the otherwise incompetent witness may testify, but only as to the same conversations or events. E.g., Hoem v. Zia, 159 Ill.2d 193, 636 N.E.2d 479, 201 Ill.Dec. 47 (1994) (in medical malpractice wrongful-death case in which deceased patient’s family introduced medical records into evidence and plaintiff’s expert went beyond what was written in records to state why deceased came to see defendant, defendant had right to testify to same conversation). Compare Vazirzadeh v. Kaminski, 157 Ill.App.3d 638, 510 N.E.2d 1096, 110 Ill.Dec. 65 (1st Dist. 1987) (introduction of defendant’s medical records alone did not waive plaintiff’s Dead-Man’s Act objection). See also Wassmann v. Ritchason, 63 Ill.App.3d 770, 380 N.E.2d 1022, 20 Ill.Dec. 813 (2d Dist. 1978) (when plaintiff called defendant’s passenger as eyewitness to collision, defendant was permitted to testify about collision). This exception reflects the policy of the Act not to disadvantage the living, but rather to put the parties on an equal footing. See Morse v. Hardinger, 34 Ill.App.3d 1020, 341 N.E.2d 172 (4th Dist. 1976). The
exception applies to an adverse examination of a defendant as well as to occurrence witnesses. The adverse witness is competent to testify to the whole transaction about which he or she is questioned. See In re Estate of Deskins, 128 Ill.App.3d 942, 471 N.E.2d 1018, 1026, 84 Ill.Dec. 252 (2d Dist. 1984); Logue v. Williams, 111 Ill.App.2d 327, 250 N.E.2d 159 (5th Dist. 1969). The adverse witness may not, however, testify about matters that were not covered on direct examination. See Deskins, supra. For an example of questions carefully tailored to avoid eliciting facts about conversations or events occurring in the deceased’s presence, see Buczyna v. Cuomo & Son Cartage Co., 146 Ill.App.3d 404,496 N.E.2d 1116, 100 Ill.Dec. 51 (1st Dist. 1986).
In two cases, the Illinois appellate court addressed whether a decedent’s medical records containing history recorded by a defendant doctor were admissible. Theofanis v. Sarrafi, 339 lll.App.3d 460, 791 N.E.2d 38, 274 Ill.Dec. 242 (1st Dist. 2003) (plaintiffs adverse examination limited to conversations deceased and defendant doctor had on or after June 3, 1996, did not waive Dead-Man’s Act objection to conversation taking place six days earlier); Malanowski v. Jabamoni, 332 lll.App.3d 8, 772 N.E.2d 967, 265 Ill.Dec. 596 (1st Dist. 2002) (testimony by plaintiffs expert opened door to introduction of defendant doctor’s records into evidence due to waiver by estate of Dead-Man’s Act objection).
Under the Dead-Man’s Act’s second exception, if the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted into evidence. See also Idleman v. Raymer, 183 Ill.App.3d 938, 539 N.E.2d 828, 132 Ill.Dec. 265 (4th Dist. 1989) (plaintiffs made decedent’s physician their witness by introducing into evidence his deposition taken by defendants, and testimony presented by defendants concerning decedent’s visits to physician was admissible to extent it concerned conversations or events about which physician testified).
Under the Dead-Man’s Act’s third exception, dealing with actions founded on account books and records, certain otherwise incompetent testimony is rendered competent. However, this exception is not available to a defendant doctor in a medical malpractice case as an excuse to qualify his or her otherwise incompetent records as evidence. Theofanis, supra.
e. [6.28] Waiver- Strategic Considerations
As explained in §6.27 above, the protection of the Dead-Man’s Act may be waived by the representative. 735 ILCS 5/8-20I. Therefore, counsel for the representative is well-advised, if a decision has been made to invoke the Dead-Man’s Act, to raise the issue by motion in limine, to try to head off or weaken the possibility an incompetent version of what happened will be stated by the adversary as a matter of fact in the opening statement. For the objecting party, Dead-Man’s Act objections are usually best made outside the presence of the jury. See Callaghan v. Miller, 17 Ill.2d 595, 162 N.E.2d 422, 425 (1959); Kelley v. First State Bank of Princeton, 81 Ill.App.3d 402,401 N.E.2d 247, 36 Ill.Dec. 566 (3d Dist. 1980). Nevertheless, it is not reversible error to permit one barred by the Act to take the stand and testify until the objection is made, even though the making of the objection may create an unfavorable impression on the jury. See Martin v. Miles, 41 Ill.App.2d 208, 190 N.E.2d 473 (4th Dist. 1963).
f. [6.29] Other Strategic Considerations
Counsel for the representative in a wrongful-death action must carefully review the facts and circumstances of the case to determine (1) who should be added as defendants (since a defendant is automatically one with an adverse economic interest), (2) whether the estate will benefit by asserting the Dead-Man’s Act objection, and (3) if so, how the case can be established without the incompetent testimony. In determining what testimony is incompetent, the Act and its exceptions must be studied. In cases of life-threatening injury or illness, counsel should evaluate the desirability of taking an evidence deposition (possibly video) of a party not likely to survive until trial or the possibility of advancing the case for an early trial. S.Ct. Rule 217. See also Flack v. McClure, 206 Ill.App.3d 976, 565 N.E.2d 131, 151 Ill.Dec. 860 (1st Dist. 1990); Muka v. Estate of Muka, 164 Ill.App.3d 223, 517 N.E.2d 673, 115 Ill.Dec. 262 (2d Dist. 1987). Opposing counsel must anticipate and be prepared to deal with Dead-Man’s Act issues at trial and be alert for waiver by the representative.
Lawyers are not permitted to comment on the fact that another party objected to testimony offered from a witness who was incompetent under the Act. See Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142 (1953). However, it is proper to explain that a witness was barred by law from testifying as to certain facts as a result of the Act. See Smith v. Perlmutter, 145 Ill.App.3d 783, 496 N.E.2d 358,99 Ill.Dec. 783 (3d Dist. 1986).
When the Dead-Man’s Act has been successfully invoked, it is proper for the jury to be instructed on the matter. I.P.I. – Civil No. 5.02 states:
5.02 Failure of Party to Testify
The [plaintiff) [defendant] in this case is [suing] [sued] as [administrator] [executor] [guardian] for a [deceased person] [incompetent person]. Since the deceased cannot be here to testify [since the incompetent person is incapable of testifying], the law does not permit the [defendant] [plaintiff) [or any person directly interested in this action] to testify in his own behalf [to any conversation with the] [deceased] [incompetent person] [or] [to any event which took place in the presence of the] [deceased] [incompetent person]. The fact that the [defendant] [plaintiff) did not testify to those matters should not be considered by yon for or against him.
[In this case, however, the (plaintiff) (defendant) called (a witness) (the defendant) (the plaintiff) to testify on his behalf (to conversations with the) (deceased) (incompetent person) (or) (to an event which took place in the presence of the) (deceased) (incompetent person), and therefore the (plaintiff) (defendant) (interested person) had the right to testify as to the same (conversation) (event).]
[In this case, however, since the deposition of the (deceased) (incompetent person) was admitted in evidence on behalf of the (plaintiff) (defendant), the (plaintiff) (defendant) (interested person) had the right to testify as to the same matters admitted in evidence.]
[In this case, however, the law does not prevent the testimony concerning any fact relating to the heirship of the decedent.]
It should be remembered that the. scope of the Dead-Man’s Act is narrow. Accordingly, in many instances alternative forms of proof remain available. The Act does not bar evidence of the conversation or event, only the adverse or interested party’s testimony about the conversation or event. The conversation or event is admissible if proved by competent evidence such as the testimony of a non-interested witness. See Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249 (1956). A tape recording of a conversation or statement is not barred by the Dead-Man’s Act. See, e.g., Muka, supra. Similarly, the Act does not bar testimony concerning matters before or after the event. See, e.g., Brown v. Arco Petroleum Products Co., 195 Ill.App.3d 563, 552 N.E.2d 1003, 142 Ill.Dec. 262 (1st Dist. 1989); Malavolti v. Meridian Trucking Co., 69 Ill.App.3d 336, 387 N.E.2d 426, 25 Ill.Dec. 770 (3d Dist. 1979). But see Murphy v. Hook, 21 Ill.App.3d 1006, 316 N.E.2d 146 (2d Dist. 1974). Moreover, the Act does not alter the burdens of proof concerning the causes of action or damages. The plaintiff still has to prove the event or conversation if it is part of the prima facie case. In attempting to prove a case, the plaintiff may waive the objection. Nonetheless, the Act allowed the deceased’s personal representative to selectively choose events or conversations for which testimony is adduced.
Illinois courts have held that servants of a defendant corporation, even though they may be liable to the corporation, are not “interested” persons under the Dead-Man’s Act since the judgment is not binding on them. See Feitl v. Chicago City Ry., 211 Ill. 279, 71 N.E. 991 (1904); Johnson v. Matthews, 301 Ill.App. 295, 22 N.E.2d 772 (1st Dist. 1939) (agent of party); Sankey v. Interstate Dispatch, Inc., 339 Ill.App. 420, 90 N.E.2d 265 (1st Dist. 1950). Consequently, an employee of a defendant corporation may be competent to testify about conversations with the decedent or events occurring in the presence of the decedent. Thus, the Act may have very little impact on a corporate defendant because it acts only through its agents and employees. But if the personal representative perceives an advantage in barring such testimony, all that need be done is name the employee as a defendant, assuming this can be done in good faith. Similarly, trial lawyers must understand the likely impact dismissing parties from an action may have. When a party is dismissed or a verdict is directed in his or her favor, that individual’s status as a party changes and any incompetency may, as a result, be removed. See Hawthorne v. New York Central R.R., 2 Ill.App.2d 338,119 N.E.2d 516 (4th Dist. 1954).
Use of Expert Testimony
a. [6.30] In General
Under S.Ct. Rule 213(f), there are three independent categories of witnesses:
(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(2) Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. Au answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (li) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
S.Ct. Rule 213(g) states:
(g) Limitation on Testimony and Freedom to Cross-Examine. The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.
Without making disclosure under this rule, however, a cross examining party can elicit information, including opinions, from the witness. This freedom to cross examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.
See Barbara A. McDonald, Striking the Right Balance: New Supreme Court Rule 213, 90 Ill.B.J. 406 (2002).
While S.Ct. Rules 213(f)(1) – 213(f)(3) set forth a party’s pretrial witness disclosure obligations, the new Illinois Rules of Evidence clearly set forth the rules governing the admissibility of the opinion testimony. See Ill.R.Evid. 701 -705.
Ill.R.Evid. 701 governs the admissibility of opinion testimony of lay witnesses:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Ill.R.Evid. 702 governs the admissibility of the expert witness testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.
The bases of an expert’s opinion does not have to be admissible in evidence as long as it is the type of facts or data reasonably relied on by experts in that particular field. Ill.R.Evid. 704. Also, an expert can offer an opinion that embraces an ultimate issue to be decided by the trier of fact. Id.
The new rules carry over what has been the governing law in Illinois since the decision of the Illinois Supreme Court in Wilson v. Clark, 84 IIl.2d 186, 417 N.E.2d 1322, 49 Ill.Dec. 308 (1981).
b. [6.31] Reconstruction
Reconstruction experts are subject to the same requirements as other expert witnesses set forth in Rule 702 of the Illinois Rules of Evidence. See, e.g., Watkins v. Schmitt, 172 lll.2d 193, 665 N.E.2d 1339, 216 Ill.Dec. 822 (1996); Zavala v. Powermatic, Inc., 167 111.2d 542, 658 N.E.2d 371,212 Ill.Dec. 889 (1995); Plank v. Holman, 46 Ill.2d 465,264 N.E.2d 12 (1970).
While courts have historically been reluctant to admit reconstruction evidence when eyewitness testimony is available (e.g., McGrath v. Rohde, 53 Ill.2d 56, 289 N.E.2d 619, 622 – 623 (1972); Plank, supra; Miller v. Pillsbury Co., 33 Ill.2d 514,211 N.E.2d 733,734 (1965)), the law is now clear that such testimony can be admitted. Zavala, supra, 658 N.E.2d at 374 (“Whether to admit expert reconstruction testimony, eyewitness or not, turns on the usual concerns of whether expert opinion testimony is appropriate generally.”). When the testimony of an eyewitness is unclear or unconvincing and sufficient physical evidence is available to provide the basic data, a reconstruction expert will probably be allowed to testify. See, e.g., Abramson v. Levinson, 112 Ill.App.2d 42, 250 N.E.2d 796 (1st Dist. 1969), cert. denied, 90 S.Ct. 1868 (1970). However, in Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 392 N.E.2d 1, 29 Ill.Dec. 444 (1979), overruled on other grounds, Wills v. Foster, 229 Ill.2d 393, 892 N.E.2d 1018, 323 Ill.Dec. 26 (2008), the Illinois Supreme Court held that it was reversible error to admit accident reconstruction testimony as to the speed of a vehicle when eyewitness testimony was available, and more recently the Supreme Court followed Peterson in Watkins, supra (speed of automobile is not beyond ken of average juror). See also Ahmed v. Pickwick Place Owners’ Ass’n, 385 Ill.App.3d 874, 896 N.E.2d 854, 324 Ill.Dec. 778 (1st Dist. 2008) (officer’s opinion that decedent’s cuts were caused from a rusted bicycle were barred because not based on any specialized knowledge or application of scientific principles); Colonial Trust & Savings Bank of Peru, Illinois v. Kasmar, 190 Ill.App.3d 967, 546 N.E.2d 1112, 138 Ill.Dec. 57 (3d Dist. 1989). Nevertheless, some courts have allowed expert reconstruction testimony to contradict eyewitness accounts of an accident. See, e.g., Zavala, supra (reconstruction proper when it will help jury resolve issues beyond their ken); Robles v. Chicago Transit Authority, 235 Ill.App.3d 121, 601 N.E.2d 869,176 Ill.Dec. 171 (1st Dist. 1992).
Numerous courts have addressed questions concerning accident reconstruction experts. The cases do not reflect a uniform approach. A trial court is afforded considerable discretion in determining whether reconstruction testimony will be allowed.
A leading wrongful-death case allowing reconstruction testimony is Miller, supra. This wrongful-death claim was filed on’ behalf of a truck driver who was killed when his semitrailer collided with two other semitrailers owned by the defendant. There were no eyewitnesses qualified to testify. The court allowed the testimony of a reconstruction expert because the physical evidence was sufficient to form a basis and it was necessary to rely on knowledge of principles beyond the purview of the average juror. Wrongful-death cases in which the plaintiff intends to enforce the Dead-Man’s Act may be appropriate cases for use of reconstruction experts, although a reconstruction could result in waiver of the Act’s protection under the right circumstances.
[6.32] Presumptions and Burden of Proof
Various presumptions and inferences may be useful in establishing or defending a wrongful death case. For example, there is a presumption against suicide. Kettlewell v. Prudential Insurance Company of America, 4 Ill.2d 383, 122 N.E.2d 817, 819 (1954); Wilkinson v. Aetna Life Insurance Co., 240 Ill. 205, 88 N.E. 550, 553 (1909). The jury may consider this presumption, along with all of the evidence in the case, in determining the cause of death.
When a collision occurs in one of two traffic lanes, it is presumed that the driver of the vehicle in the wrong lane was negligent. Calvetti v. Seipp, 70 Ill.App.2d 58, 216 N.E.2d 497,500 (5th Dist. 1966).
In handling wrongful-death cases, it is important to remember that the mere fact of an accident does not alone raise any presumption of negligence. E.g., Moss v. Wagner, 27 Ill.2d 551, 190 N.E.2d 305, 307 (1963). However, this rule is subject to an important exception. When the plaintiff(or the plaintiffs decedent) is a passenger injured during the course of transportation and the defendant is a common carrier, there is a presumption that the carrier was negligent. Tolman v. Wieboldt Stores, Inc., 38 Ill.2d 519, 233 N.E.2d 33 (1967). Therefore, under such circumstances, a prima facie case exists merely by virtue of the accident itself. The burden then shifts to the defendant carrier to establish why it should not be held responsible.
The fact that an injury took place while on a business’ premises does not give rise to a presumption of negligence. Halpin v. Pekin Thrifty Drug Co., 79 Ill.App.2d 153, 223 N.E.2d 708, 710 (3d Dist. 1967).
Because “[a] normal person is presumed to exercise due care for his own safety and preservation,” contributory negligence will not be implied. I Robert S. Hunter, TRIAL HANDBOOK FOR ILLINOIS LAWYERS, CIVIL §34.40, p. 585 (7th ed. 1997). There is a presumption that the driver of an automobile is the owner. McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708, 710 (1967). A child under seven is conclusively presumed to be incapable of contributory negligence. Moser v. East St. Louis & Interurban Water Co., 326 Ill.App. 542, 62 N.E.2d 558, 560 (4th Dist. 1945). Further, a rebuttable presumption exists that a child between seven and fourteen is not guilty of contributory negligence. E.g., Sramek v. Logan, 36 Ill.App.3d 471,344 N.E.2d 47, 49 (3d Dist. 1976).
Every person is presumed to be sane. Shevlin v. Jackson, 5 Ill.2d 43, 124 N.E.2d 895, 897 (1955). Furthermore, all persons are presumed to intend the natural and probable consequences of their voluntary acts. Smith v. Birge, 126 Ill.App. 596 (4th Dist. 1906). Additionally, mental incompetency will not be inferred merely from old age or physical illness. Masterson v. Wall, 365 Ill. 102, 6 N.E.2d 161, 165 (1936).
There are many other presumptions and inferences that may be drawn in wrongful-death cases, including res ipsa loquitur, failure of a party to testify, flight from the scene of an accident, spoliation of evidence, and validity of marriage.
D. Issues Associated with Establishing or Minimizing Damages
1. [6.33] Presumptions and Burden of Proof
The Wrongful Death Act, 740 ILCS 18010.01, et seq., creates a cause of action in favor of the personal representative for the benefit of the surviving spouse and next of kin. They are entitled to compensation for their “pecuniary” losses. There are two critical legal issues that arise in this regard. First, who are the “next of kin”? Second, what does “pecuniary loss” include? The persons entitled to recover are discussed in detail in Chapter 1 of this handbook, and the damages recoverable are discussed in Chapter 2.
In a wrongful-death case, the “next of kin” entitled to take are the heirs as defined by the statutory intestate succession rules. E.g., Morris v. William L. Dawson Nursing Center, Inc., 187 Ill.2d 494,719 N.E.2d 715, 241 Ill.Dec. 586 (1999) (rejecting arguments that this rule is outdated in light of recognition of loss of society). The intestate succession rules are found in Article II of the Probate Act of 1975,755 ILCS 5/2-1, et seq. As an example of the application of these rules, if the decedent left a spouse or children, his or her parents or siblings are not next of kin within the meaning of the Wrongful Death Act. See Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170 (1928). However, the rules governing who may share, when it comes to loss of society damages, do not also govern the proportionate shares of the surviving spouse and next of kin. Morris, supra.
The meaning of “pecuniary injuries” has expanded in the past several decades. For example, in Elliott v. Willis, 92 Ill.2d 530, 442 N.E.2d 163, 65 Ill.Dec. 852 (1982), the Illinois Supreme Court held that Pecuniary injuries include a surviving spouse’s loss of consortium. In Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984), the Supreme Court clarified that pecuniary injuries also include the loss of a minor child’s society. Moreover, in Ballweg v. City of Springfield, 114 Ill.2d 107, 499 N.E.2d 1373, 102 Ill.Dec. 360 (1986), loss of society was allowed to the surviving parents of a deceased adult child. Such recovery has also been allowed to the adult children of a deceased parent. In re Estate of Keeling, 133 Ill.App.3d 226, 478 N.E.2d 871, 872, 88 Ill.Dec. 380 (3d Dist. 1985). The siblings of a deceased may recover for a proven loss of society, although such loss is not presumed. In re Estate of Finley, 151 Ill.2d 95, 601 N.E.2d 699, 176 Ill.Dec. 1 (1992). It was held that loss of society damages are available to the parents of a stillborn infant or a deceased unborn fetus, and that pecuniary loss is not solely dependent on a past relationship with the deceased, but can include the consideration of the companionship that may have been enjoyed in the future. Thornton v. Garcini, 364 Ill.App.3d 612,846 N.E.2d 989, 301 Ill.Dec. 386 (3d Dist. 2006).
As reflected in I.P.I 31.04 below, a 2007 amendment to the Wrongful Death Act expanded the categories available for consideration when determining the extent of pecuniary loss to include the grief, sorrow, and mental suffering of the decedent’s spouse or next of kin.
I.P.I. – Civil No. 31.04 explains:
“Pecuniary loss” may include loss of money, benefits, goods, services, [and] society [and sexual relations].
Where a decedent leaves __________widow and/or lineal next of kin, e.g., son__________,
the law recognizes a presumption that __________widow and/or lineal next of kin, e.g., son__________
has sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to
have contributed in the future;]
[3. Decedent’s personal expenses (and other deductions);]
[4. What instruction, moral training, and superintendence of education the decedent might reasonably have been expected to give his child had he lived;]
[5. His age;]
[6. His sex;]
[7. His health;]
[8. His habits of (industry,) (sobriety,) (and) (thrift);]
[9. His occupational abilities;]
[10. The marital relationship that existed between —–widow—- and —-decedent—-;]
[11. The relationship between —- lineal next of kin, e.g., son —- and —- decedent —-.]
[—- widow —- is not entitled to damages for loss of —- decedent —- ‘s society and sexual relations after —- date of widow’s remarriage —-.]
“Loss of society” is defined as “the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” I.P.I. – Civil No. 31.11. See also Singh v. Air Illinois, Inc., 165 Ill.App.3d 923,520 N.E.2d 852, 117 Ill.Dec. 501 (1st Dist. 1988).
The long-standing rule in Illinois is that when a decedent leaves direct lineal kin or a surviving spouse, it is presumed that those persons have a substantial pecuniary loss by reason of the death. Hall v. Gillins, 13 Ill.2d 26,147 N.E.2d 352,355 (1958); Dukeman v. Cleveland, C; C. & St. L. Ry., 237 Ill. 104,86 N.E. 712, 714 (1908); Ferraro v. Augustine, 45 Ill.App.2d 295, 196 N.E.2d 16, 20 (1st Dist. 1964). The Supreme Court modified this rule in Bullard, supra, 468 N.E.2d at 1234. In Bullard, the court recognized a claim for the loss of a minor child’s society by the parents. In light of the recognition of the loss of society, the Bullard court held that there is no longer a presumption of lost earnings upon the death of a minor child, but, instead, there is now a presumption of pecuniary injury to the parents in the loss of a minor child’s society. Similarly, in the case of the loss of an adult child’s society, it is now presumed that the parents have a substantial pecuniary loss by virtue of the loss of the adult child’s society, but no longer is there a presumption of an actual loss of earnings. Ballweg, supra, 499 N.E.2d at 1379. There is no presumption of substantial pecuniary loss in favor of collateral heirs. Finley, supra.
As in all civil cases, the plaintiff has the burden of establishing every element of the case, including the items of damages recoverable. Sections 6.33 – 6.40 below address the practical problems encountered in proving or minimizing the available damages.
2. [6.34] Proving or Minimizing the Economic Loss
One of the best places to begin structuring the evidence is with the jury instructions that the court will read. Regarding economic loss, the jury will be told that it must fix the amount of money that will reasonably and fairly compensate the next of kin for their pecuniary loss. This amount may encompass the loss of money, benefits, goods, and services. I.PJ. – Civil No. 31.05. Relevant factors to consider include the decedent’s age, sex, health, physical and mental characteristics, occupational abilities, and habits of industry, sobriety, and thrift. Id. Economic losses include the loss to the estate itself (see, e.g., Fowler v. Chicago & E. I R. Co., 234 Ill. 619, 85 N.E. 298 (1908); Annot., 42 A.L.R.5th 465 (1996)) as well as the financial loss sustained by those who survived the premature death (see, e.g., Keel v. Compton, 120 Ill.App.2d 248, 256 N.E.2d 848, 852 (3d Dist. 1970)). Examples of financial loss include support, maintenance, gifts, and services around the house. Of course, the starting point is to establish, through admissible evidence, the money, goods, and services contributed by the decedent in the past as well as those the decedent would likely have contributed in the future had he or she lived out a normal life expectancy. With these legal standards in mind, the attorney preparing to try a wrongful-death case must marshal the evidence (lay witnesses, possibly experts, and exhibits), as discussed further in §§6.35 – 6.37 below.
Obviously, the representative will attempt to maximize damages recoverable. Plaintiff’s counsel, however, must be careful not to overreach and request damage amounts not supported by the evidence and must also take into consideration how strong a case for liability has been made in requesting damages. Concrete evidence such as testimony of the employer generally has more impact than reliance on the testimony of experts alone. Defense counsel always faces a dilemma when liability is disputed. Should damages be argued at all? Defense counsel should conduct cross-examinations gently if at all concerning damages for loss of society in most cases. For example, while evidence of a decedent’s extramarital affair that the spouse knew about before death is admissible (see Countryman v. County of Winnebago, 135 Ill.App.3d 384, 481 N.E.2d 1255, 90 Ill.Dec. 344 (2d Dist. 1985)), whether it would be wise to offer this type of evidence is another matter altogether.
a. [6.35] Lay Testimony
Both sides should creatively use lay witnesses to establish their “damages” facts.
In preparing a wrongful-death case for trial on behalf of the next of kin, the extent to which the next of kin should be used to prove the elements of economic damages is a matter of discretion. Numerous factors should be considered. In general, it is a good idea to use witnesses more neutral than the next of kin to establish as much of the damages case as possible. If the deceased was a wage earner, it may be wise to call appropriate lay witnesses from the decedent’s place of employment. An admiring supervisor can make a powerful witness. For example, in Lorenz v. Air Illinois, Inc., 168 Ill.App.3d 1060, 522 N.E.2d 1352, 119 Ill.Dec. 493 (1st Dist. 1988), the plaintiff’s decedent was a professor at Southern illinois University at the time he was killed in an airplane crash. A former dean testified on behalf of the professor’s family, opining that if he had not been killed, the professor probably would have become dean of the university, earning substantially more money as a professor. This testimony was allowed, and, in light of the decedent’s background and ambitions, the technique of calling the former dean was very effective. Such a person can provide not only details about what the decedent had actually been making in the past but also detailed factual information about benefits lost and, most important, the decedent’s earning capacity in the future, which is often much greater than the trier of fact would otherwise assume. However, testimony concerning future earning capacity will not be allowed if it is deemed to be too speculative. E.g., Carlson v. City Construction Co., 239 Ill.App.3d 211,606 N.E.2d 400, 179 Ill.Dec. 568 (1st Dist. 1992).
Plaintiff’s counsel should consider calling witnesses to prove lost “services.” Family members and close friends are good candidates for such testimony. Neighbors, acquaintances, and persons more distant from the family of the deceased may be even better. Observations of a near stranger that tend to show the losses suffered by the next of kin can be very effective since such a person is likely to be viewed as less biased and more independent.
For the plaintiff, determining the appropriate lay witnesses to call to prove the economic losses begins with spending a substantial amount of time with the next of kin. Counsel must come to know the deceased. Such knowledge is acquired over a period of time. The next of kin may be the best initial source of information concerning what potential witnesses should be interviewed. Those interviews often lead to others.
The defendant may choose to call or cross-examine lay witnesses to counter or minimize lost income or accumulation to the estate theories. Employers may testify that the decedent was not likely to be promoted or was likely to receive a pay cut, to be demoted, or to be terminated because of performance or other factors such as declining business, bankruptcy, etc. Coworkers, relatives, and others may have testimony valuable to the defendant. For example, treating physicians may testify that because of a condition unrelated to the defendant’s alleged conduct, the decedent’s work life would have been shortened. However, in many cases, the defense wisely chooses not to call any lay witnesses on damages issues at all.
b. [6.36] Expert Testimony
Experts from various disciplines may testify about the economic loss to the estate, spouse, and next of kin. Economists, actuaries, investment advisers, mathematicians, employment counselors, and business evaluation experts are among the available witnesses. The plaintiff’s experts may calculate the loss suffered by the beneficiaries as a result of the decedent’s death, including historic losses (to date of trial) and future streams of income lost or lost accumulations to the estate. Experts may also place a value to the next of kin of the decedent’s lost services. Such experts may be called on to explain concepts such as present value, inflation, savings, increases in income through promotions, the economic value of fringe benefits, economic growth, investment, and cost-of-living raises. Obviously, the experts must be qualified. Just as important, they must be interesting. To be effective, the experts’ testimony should be based on solid grounds and not be exaggerated.
The jury must discount future economic losses to “present cash value.” See, e.g., Schaffner v. Chicago & North Western Transportation Co., 129 Ill.2d 1, 541 N.E.2d 643, 653, 133 Ill.Dec. 432 (1989).
“Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the [expenses] [and] [earnings] [benefits] at the time in the future when [the expenses must be paid] [or] [the earnings (benefits) would have been received]. I.P.I. – Civil No. 34.02.
Present cash value is clearly an appropriate topic for expert testimony. See, e.g., Richardson v. Chapman, 175 Ill.2d 98, 676 N.E.2d 621, 221 Ill.Dec. 818 (1997); Varilek v. Mitchell Engineering Co., 200 Ill.App.3d 649, 558 N.E.2d 365, 146 Ill.Dec. 402 (1st Dist.), appeal denied, 133 lll.2d 574 (1990).
Inflation can also be considered by the jury. In Varilek, the court held that inflation is relevant to determining the amount of future earnings. An expert was not barred “from testifying as to present cash value by utilizing a formula which incorporates inflation and real wage growth.” 558 N.E.2d at 380. The court stated that “[o]f course, if there is no expert testimony or other evidence of inflation presented, it would be proper to sustain an objection to argument of counsel urging jurors to consider inflation.” 558 N.E.2d at 380, citing Prendergast v. Cox, 128 lll.App.3d 84, 470 N.E.2d 34, 39, 83 Ill.Dec. 279 (1st Dist. 1984).
In American National Bank & Trust Company of Chicago v. Thompson, 158 Ill.App.3d 478, 511 N.E.2d 1206, 110 Ill.Dec. 886 (1st Dist. 1987), the court precluded testimony or argument on the effect of inflation and the growth of real earnings in determining present cash value. The American National Bank court also required the use of neutral instead of actual figures. See also Allendorf v. Elgin, Joliet & Eastern Ry., 8 Ill.2d 164, 133 N.E.2d 288 (1956). In contrast, in Stringham v. United Parcel Service, Inc., 181 Ill.App.3d 312, 536 N.E.2d 1292, 1296, 130 Ill.Dec. 81 (2d Dist. 1989), the court explained:
[p]redicting future earnings without considering the effects of inflation on wage levels produces an unrealistically low estimate of the plaintiff’s total future earnings. When this estimate is discounted by the market interest rate, the plaintiff will receive an award which, even if invested at that rate, would yield fewer dollars than if the plaintiff had continued earnings which kept pace with inflation.
The Illinois Supreme Court ended the debate in Richardson, supra, 676 N.E.2d at 626. It is now clear that the “growth rate of wages and prices” may be included in a present value calculation and that an opinion witness is not limited to the use of neutral figures. Id.
Of course, the decedent’s purely personal consumption should be deducted. See, e.g., Baird v. Chicago, Burlington & Quincy R.R., 63 Ill.2d 463, 349 N.E.2d 413 (1976); Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984).
Whether an economist should be called by either party in a wrongful-death case is a matter for the discretion of the trial attorney. Such testimony is usually offered by the plaintiff, less frequently by the defendant.
c. [6.37] Exhibits
Exhibits used to establish damages in wrongful-death cases are limited only by the imagination of counsel and the experts. Proving true economic losses may result in exhibits such as life expectancy tables, employment and personnel files, federal and state income tax returns, W-2 forms, North American Industrial Classification System tables, Statistical Abstracts of the United States, professional publications, and documents evidencing the nature and value of the decedent’s fringe benefits atwork (e.g., pension and family medical insurance). See, e.g., Hanlon v. Airco Industrial Gases, 219 Ill.App.3d 777, 579 N.E.2d 1136, 162 Ill.Dec. 322 (1st Dist. 1991) (past income tax returns admissible to establish lost future income). With creativity and computer graphics, however, the key numbers and concepts can be made to jump off the page with vivid charts and graphs. Courts will take judicial notice of standard mortality tables. See Allendorf v. Elgin, Joliet & Eastern Ry., 8 Ill.2d 164, 133 N.E.2d 288 (1956). Standard mortality tables and annuities tables may be admitted as an exception to the hearsay rule. See Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290, 83 N.E. 184 (1907); Allendorf, supra. Recovery for lost income must be based on remaiuing life expectancy as opposed to life expectancy alone. McCray v. Illinois Central R.R., 12 Ill.App.2d 425, 139 N.E.2d 817 (1st Dist. 1957). Summaries of complex economic testimony should be prepared. Ill.R.Evid. 1006 provides:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
See also People of State of Illinois v. Crawford Distributing Co., 65 Ill.App.3d 790, 382 N.E.2d 1223, 22 Ill.Dec. 525 (4th Dist. 1978); Joseph W. O’Brien Co. v. Highland Lake Construction Co., 17 lll.App.3d 237, 307 N.E.2d 761 (1st Dist. 1974); Michael H. Graham, GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §1006.1, p. 1103 (10th ed. 2010).
3. Proving or Minimizing the Noneconomic Loss
a. [6.38] Lay Testimony
Losses of consortium and society are matters uniquely suited for presentation through lay witnesses. To understand the nature of the intangible losses suffered by the next of kin, the jury should get to know the deceased.
During the course of a one-hour television show, the average juror accumulates information about the lives of several main characters. Therefore, the jury will not patiently receive weeks of testimony before drawing conclusions about a decedent’s life and the effect of his or her death on next of kin. The plaintiff’s attorney’s challenge is, without appearing to play inappropriately on the sympathy of the jury, to present sufficient details about the decedent and the next of kin to increase the likelihood that an award of full, fair, and adequate damages will be made.
Professor Ball teaches plaintiffs’ lawyers as follows:
[Flew attorneys do enough to find out what all the harms and losses were or will be, and few present those harms and losses as effectively as possible. You must seek out and present information about your client’s harms and losses as vigorously and thoroughly as you pursue and present liability matters.
I once asked an attorney for a list of the harms and losses in his wrongful death case. He gave me the following:
- Loss of a husband
- Loss of a father
A guy dies and the whole loss takes only nine words? To anyone who cares about him it should be more like nine volumes. And you want the jury to care about him.
Learn the full range and depth of your client’s harms and losses. “Harms and losses” means all the bad things that happened because of the defendant’s negligence. It is never only nine, 90, or even 900 words. The best sources include the client, the people who know or knew him, the people who worked with him, helped him, observed him, and experts – such as social workers and other counselors – who work with people with similar harms and losses. The more you listen to those sources, the more you will learn about the harms and losses to your client. David Ball, DAVID BALL ON DAMAGES: THE ESSENTIAL UPDATE: A PLAINTIFF’S ATTORNEY’S GUIDE FOR PERSONAL INJURY AND WRONGFUL DEATH CASES, p. 2 (2d ed. 2005).
Assembling several powerful lay witnesses to briefly share observations or stories about the deceased and his or her family can be effective. No generalizations can be made about who should be selected. The surviving spouse, neighbors, fellow PTA members, grocery store clerks, travel agents, family accountants, and doctors are some of the possibilities. Counsel’s goal should be to underscore that which made the decedent special. Provided adequate time is spent with those who knew the deceased, the task is usually not difficult.
The plaintiffs attorney should pay close attention to witnesses who may be able to provide details about the losses of the next of kin. Family members and close friends provide obvious sources of such testimony. Neighbors, acquaintances, and persons more distant from the family of the deceased should also be considered. Observations of a near stranger that tend to show the losses suffered by the next of kin can be very effective since such a person is likely to be viewed as less biased and more independent than persons with close relationships with the next of kin. Counsel may introduce evidence concerning gifts. Although this evidence can be presented by the next-of-kin gift recipient, it will be much more effective when introduced through the eyes of a more neutral observer. Defense counsel may point out facts such as estrangement to reduce recovery. See Chapman v. Gulf, M & O. R. Co., 337 Ill.App. 611, 86 N.E.2d 552 (3d Dist. 1949) (fact that woman was not living with her husband at time of death is relevant). See also Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984) (presumption of pecuniary loss may be rebutted by showing that parent and child were estranged at time of death).
Some years ago, the author had to prove the relationship between a deceased eight-year-old girl and her father. The girl’s parents were divorced and on bad terms. The mother had custody of the child; the father had visitation rights. The father was to pay child support, which he failed to do. In truth, however, he had a close relationship with his daughter. He provided more economic support than was required by his divorce agreement directly to his daughter in the form of clothing purchases and direct payments to her. At issue was the extent of this father’s loss of society for determining his share of a wrongful-death settlement. One way of proving the relationship was through the father’s testimony about his feelings for his daughter, the things they did together, the nature of their relationship, etc. Instead, counsel relied on brief testimony from a woman who barely knew the father but lived in the same neighborhood. This woman, who had no bias, described how the father and daughter walked hand in hand through the park when there was no one there to see, and the girl often wore a St. Louis Cardinals hat even though she lived with her mother in the Chicago area (her father, of course, living near St. Louis and being a devout Cardinals fan) as established through other witnesses. This type of testimony said more about the relationship between the child and her father than any self-serving statements the father made on the witness stand.
Usually, evidence of a wrongful-death beneficiary’s wealth, health, poverty, or helplessness cannot be considered in determining damages. See, e.g., Freehill v. DeWitt County Service Co., 125 Ill.App.2d 306, 261 N.E.2d 52 (4th Dist. 1970). A limited inquiry into medical condition may be allowed to describe close ties, dependence, amount of love, etc. See Stringham v. United Parcel Service, Inc., 181 Ill.App.3d 312, 536 N.E.2d 1292, 130 Ill.Dec. 81 (2d Dist. 1989); Cooper v. Chicago Transit Authority, 153 Ill.App.3d 511, 505 N.E.2d 1239, 106 Ill.Dec. 448 (1st Dist. 1987).
Actions for conscious pain and suffering before death are frequently tried with wrongful death counts. E.g., Hall v. National Freight Inc., 264 Ill.App.3d 412, 636 N.E.2d 791, 201 Ill.Dec. 359 (1st Dist.) (26 minutes of conscious pain and suffering compensable), appeal denied, 157 Ill.2d 500 (1994). See also Annot., 75 A.L.R.4th 151 (1990). Lay witnesses can be key to proving the extent of conscious pain and suffering.
b. [6.39] Expert Testimony
Most often, expert witnesses are not used to establish noneconomic losses in wrongful-death cases. However, a pathologist would be a common witness to call in a case involving conscious pain and suffering before death to prove the nature, extent, and duration of this suffering. In addition, some plaintiffs have used hedonic damages experts. See Sherrod v. Berry, 827 F.2d 195, 205 (1987), vacated en banc on other grounds, 856 F.2d 802 (7th Cir, 1988); Johnson v. Inland Steel Co., 140 F.R.D. 367, 372 (N.D.Ill. 1992). However, such experts have also been rejected. Fetzer v. Wood, 211 Ill.App.3d 70, 569 N.E.2d 1237, 155 Ill.Dec. 626 (2d Dist. 1991) (noting that Sherrod was decided under federal, not state, law and that expert testimony on noneconomic losses is misleading because it gives illusion of certain value to intangible losses that are uncertain and that, in any event, are within ken of average juror). In some cases, however, testimony of psychologists and psychiatrists has been allowed to prove loss of consortium damages. E.g., In re Air Crash at Lexington, Kentucky, August 27, 2006, No. 5:06-CV-316-KSF, 2009 WL 1813137 (E.D.Ky. June 23, 2009).
Damages for loss of consortium or society, like damages for pain and suffering, are not reduced to present cash value. Drews v. Gobel Freight Lines, Inc., 144 Ill.2d 84, 578 N.E.2d 970, 161 Ill.Dec. 324 (1991).
c. [6.40] Exhibits
Photographs of the decedent, even gruesome after-death photographs, will be admitted if their probative value outweighs their potential prejudicial effect. The trial judge is in the best position to make this determination, and that decision will be reversed only if the judge has abused his or her discretion. Use of gruesome photographs was allowed in Drews v. Gobel Freight Lines, Inc., 144 Ill.2d 84, 578 N.E.2d 970, 978, 161 Ill.Dec. 324 (1991), and Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984). See also Hanlon v. Airco Industrial Gases, 219 Ill.App.3d 777, 579 N.E.2d 1136, 162 Ill.Dec. 322 (1st Dist. 1991).
Videotapes, pictures, or recordings showing the decedent interacting, providing counsel, nursing, or assisting the beneficiaries can be very effective. In Drews, supra, for instance, videotapes depicting the decedent teaching his son to swim and play golf and photographs showing the decedent and his wife at a picnic on their land, the decedent building his new home, and the decedent with his son were introduced.
Trying damages in a wrongful-death case is more about the decedent’s life than the decedent’s death. A portrait may be drawn with words, memories, photos, mementos, things that the decedent created, and other tools so the jury has a chance to come to know the deceased at home, at work, and at play.
In Barry v. Owens-Corning Fiberglas Corp., 282 Ill.App.3d 199, 668 N.E.2d 8, 217 Ill.Dec. 823 (1st Dist. 1996), the trial court admitted into evidence a 90-second video of a thoracoscopy procedure that was performed on the plaintiff’s decedent in an asbestos-related wrongful-death case. The appellate court affirmed this ruling, finding that the video showed the diseased lung and fluid buildup that caused the deceased distress before his death. This is a good example of creative use of demonstrative evidence to prove a point. A $12.3-million verdict was ultimately upheld on appeal.
Often, survival and/or family expense statute claims are tried together with wrongful-death claims. In such cases, recovery for medical, funeral, and other expenses is usually sought. Proof of such items is generally straightforward and may include evidence that the bills have been paid
or that there is liability for the bills and that the charges are reasonable. Payment of a doctor or medical bill is prima facie proof that the bill was paid and that the amount was reasonable. See, e.g., Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 150 N.B. 276 (1925); American National Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill.App.2d 163, 191 N.B.2d 628 (1st Dist. 1963); Williams v. Matlin, 328 Ill.App. 645, 66 N.B.2d 719 (1st Dist. 1946). When a plaintiff testifies that the bill was for services rendered and was paid, it is prima facie reasonable regardless of who paid it. Flynn v. Cusentino, 59 Ill.App.3d 262,375 N.E.2d 433, 16 Ill.Dec. 560 (3d Dist. 1978).Unpaid bills are not presumed to be reasonable. Omni Overseas Freighting Co. v. Cardell Insurance Agency, 78 Ill.App.3d 639, 397 N.E.2d 112, 33 Ill.Dec. 779 (1st Dist. 1979).
Many times, through requests to admit and stipulations, the paid bills can simply be introduced into evidence. If not, testimony from the personal representative or family member that the bills were paid will be required. If the bills were not paid, testimony from a treating physician or expert, for example, can be introduced to establish that the charges are reasonable.
Some believe that cases are won or lost in the summation. Careful preparation and presentation of the summation are central to success. The principles of making an effective summation are similar in wrongful-death and other types of cases. There are many excellent sources of information concerning summations. E.g., Joseph F. Anderson, Jr., The Lost Art: An Advocate’s Guide to Effective Closing Argument, 10 S.C.Law., No.3, 26 (Nov. – Dec. 1998); Lawrence J. Smith, ART OF ADVOCACY: SUMMATION (1978); Thomas A. Mauet, FUNDAMENTALS OF TRIAL TECHNIQUES, p. 401 (6th ed. 2002); Larry S. Stewart, Arguing Pain and Suffering Damages in Summation, How To Inspire Jurors, 28 Trial, No.3, 55 (Mar. 1992). See also Gerald L. Angst and Stephen C. Carlson, Ch. 12, Closing Argument, ILLINOIS CIVIL PRACTICE: TRYING THE CASE (IICLE®, 2009).
Copies of the summations that were given on December I, 2009 in an air crash wrongful death damages trial are set out in the appendix.
[6.42] Deliberations, Return Of Verdict, And Entry Of Judgment
The rules governing deliberations, return of verdict, and entry of judgment are the same in wrongful-death and other types of cases. For details concerning the rules and principles relating to these subjects, see 735 ILCS 5/2-1201, 5/2-1108, and 5/2-1109. See also Karen L. Kendall and Gregory J. Rastatter, Ch. 13, Return of the Verdict and Entry of Judgment, ILLINOIS CIVIL PRACTICE: TRYING THE CASE (IICLE®, 2009).
[6.43] Posttrial Motions
The rules concerning posttrial motions are the same in wrongful-death and other cases. It is important that the posttrial motion be specific. Matters not raised in the posttrial motion are generally waived. 735 ILCS 512-1202, 5/2-1203. See also 735 ILCS 5/2-1110.
For further discussion of posttrial motions, see ILLINOIS CIVIL PRACTICE: TRYING THE CASE, Ch. 14 (IICLE®,2009).