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Redmond v. Socha10/6/2005
f discretion standard to determine that the granting of a new trial was proper. Redmond cites authority for the proposition that a reviewing court should defer to the trial court because the judge who granted the motion for a new trial " ` "has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility." ' " Maple, 151 Ill. 2d at 456, quoting Buer v. Hamilton, 48 Ill. App. 2d 171, 173-74 (1964), quoting Hulke v. International Manufacturing Co., 14 Ill. App. 2d 5, 47 (1957). "If the trial judge, in the exercise of his discretion, finds that the verdict is against the manifest weight of the evidence, he should grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial." Maple, 151 Ill. 2d at 456. " `A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.' " Maple, 151 Ill. 2d at 454, quoting Villa, 202 Ill. App. 3d at 1089.
Socha responds that determining whether two verdicts are legally inconsistent does not require the trial court to give any consideration to credibility. The trial court is not in any better position than a reviewing court to determine whether two verdicts are irreconcilable.
We suspect that the confusion surrounding the identification of the proper standard of review stems from two things. First, a standard of review applies to an individual issue, not to an entire appeal. Each question raised in an appeal is subject to its own standard of review. Thus, under Supreme Court Rule 341, the appellant is required to provide not only a "statement of the issue or issues presented for review," but also "a concise statement of the applicable standard of review for each issue, with citation to authority." 188 Ill. 2d R. 341(e)(3). Second, no Illinois decision, either from this court or the appellate court, has expressly stated that the determination of legal inconsistency is a question of law.
Before this court, the parties frame the issue as whether the trial court abused its discretion by granting a new trial. A more precise statement of the issues would be: (1) whether the IPI Civil Jury Instruction No. B21.04(5) is inapplicable in cases involving counterclaims in which there is no evidence of causation aside from the alleged negligence of the parties, (2) whether the verdicts in this case were legally inconsistent, and (3) whether the verdicts were against the manifest weight of the evidence. For reasons explained below, the first issue has been forfeited, the second is subject to de novo review, and the third is reviewed under an abuse of discretion standard only when the trial court actually engages in an exercise of discretion.
AFFIDAVITS FOR PURPOSE OF IMPEACHING THE JURY'S VERDICT
Before addressing these issues, we feel compelled to comment on Redmond's reliance on affidavits of counsel as support for his posttrial motion. The motion was accompanied by an affidavit from his attorney stating that he had spoken with unidentified jurors after the trial. The attorney reported the jurors' belief that the parties were equally at fault. Socha did not object to the admission of the affidavit, but challenged the accuracy of its contents. A second affidavit, filed with Redmond's reply to Socha's memo in opposition to the motion, reported that three unnamed jurors told Redmond's attorney that they could not agree on who should be awarded damages.
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