The use of special interrogatories is the practice of submitting to the jury specific written questions regarding the facts giving rise to their verdict. Special interrogatories entered into the American jurisprudence system through the common law, and its modern use and application is typically governed by statute. In Illinois, the special interrogatories statute is codified in 735 ILCS 5/2-1108. The Federal Rules of Civil Procedure also provide for the use of special interrogatories, under Rule 49. Following a recent amendatory Act, for trials commencing on or after January 1, 2020, the statute provides:
Sec. 2-1108. Verdict – Special interrogatories. Unless the nature of the case requires otherwise, the jury shall render a general verdict. Within the discretion of the court, the jury may be asked to find specially upon any material question or questions of fact submitted to the jury in writing. Any party may request special interrogatories. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion. When any special finding of fact is inconsistent with the general verdict, the court shall direct the jury to further consider its answers and verdict. If, in the discretion of the trial court, the jury is unable to render a general verdict consistent with any special finding, the trial court shall order a new trial. During closing arguments, the parties shall be allowed to explain to the jury what may result if the general verdict is inconsistent with any special finding.
Prior to January of 2020, the statute contained the following compulsory language: “The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing.” (Emphasis added). With regards to the jury’s general verdict being inconsistent with answers to the special interrogatories, the statute previously read, “When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” Although the new law does not entirely eliminate special interrogatories, it now gives the court discretion to grant the request for them (typically from the defense, where proximate cause as to their client is disputed). It gives attorneys the right to explain to the jurors what may result if the general verdict is inconsistent with any special finding. This allows plaintiff’s counsel the opportunity to plead with the jury not to answer the special interrogatories in such a manner as will render a general verdict in favor of plaintiff moot. Arguably, this allows the jury to introduce sympathy into their deliberations while potentially disregarding the facts and law as they should apply to the specific case.
Historically, Illinois courts viewed special interrogatories as guardians of the integrity of a general verdict in a civil jury trial. They tested the general verdict against the jury’s determination as to one or more specific issues of ultimate fact. A special interrogatory was in proper form and had to be given if: (1) it related to an ultimate issue of fact in the cause of action (for example, causation), and (2) an affirmative answer response would be inconsistent with any general verdict returned. In cases involving personal injury actions, this would require the trial court to disregard the general verdict for plaintiff and enter judgment for defendant upon the special interrogatory. Further, on appeal, a trial court’s refusal to give a special interrogatory in proper form was reviewed de novo by the reviewing court, meaning the reviewing court was not bound by the trial court’s decision.
The material changes to the previous language of the statute that tip the scales in favor of plaintiffs are:
- The trial court has the sole discretion to give or refuse to give a special interrogatory;
- On appeal, the trial court’s refusal to give a special interrogatory is limited to whether the trial court abused its discretion, meaning unlike with de novo review, the reviewing court cannot substitute its judgment for the trial court;
- If the answer to the special interrogatory is irreconcilable with the general verdict, the trial court must tell the jury to further deliberate and consider its answer and the general verdict. If the jury cannot render consistent answers to the general verdict and special interrogatory, the trial court must order a new trial; and
- Plaintiff’s counsel can tell the jury during closing argument what may result if its answer to the special interrogatory is inconsistent with the general verdict. This means plaintiffs’ lawyers get to tell the jury unless it answers the special interrogatory plaintiff’s way, plaintiff will recover nothing from the trial.
Takeaways and Recommendations
Special interrogatories can still play a vital role in defending against legally insufficient plaintiff’s personal injury verdicts. In the case of irreconcilable differences between the finding on a special interrogatory and the general verdict, a new trial is still better for the defense than a plaintiff’s verdict. This could result in the parties reaching an amicable settlement to the claim in lieu of the time and expense of a second trial. Therefore, it is prudent for defense trial counsel to, when appropriate, ask that special interrogatories be given to the jury. Thus, it is crucial special interrogatories are tendered to the trial court in the proper form, meaning the question concerns an ultimate issue of fact, and the answer would be inconsistent with the general verdict. An example in this regard might read, “On the date of the accident and at the time and place of the accident in question in this case, was the driving conduct of plaintiff, John Smith, the sole proximate cause of the accident?” A jury’s positive response to this interrogatory would control an inconsistent general verdict by the jury in favor of plaintiff.
If the trial judge refuses to give an otherwise properly worded special interrogatory, make a record for appeal. Defense counsel should ask for the trial judge’s reasons on the record for refusing a properly formulated special interrogatory. Certainly, a judge should not be able to refuse a special interrogatory because he or she is philosophically opposed to special interrogatories.
Special interrogatories can be an important tool in helping juries decide the facts necessary to support a verdict. This is especially true in the absence of a special interrogatory, when the court is not going to properly instruct the jury on the legal issues in determining fault, whether that be a finding against plaintiff for his or her n acts or omissions, or against a co-defendant. A properly worded special interrogatory on sole proximate cause, for example, can enable the jury to consider whose conduct actually caused plaintiff’s injuries. Although it is too early to tell whether special interrogatories will become rather meaningless, defense counsel should continue to proffer them in an effort to level the playing field and obtain a verdict truly based upon the facts and evidence presented at trial.