In this week’s installment of Odenwald on Appeal, Judge Kurt Odenwald examines an Illinois Supreme Court decision addressing one of the most sensitive moments in any jury trial: what a judge may—and may not—do when deliberations stall and unanimity is questioned.
In Schilling v. Quincy Physicians and Surgeons Clinic, 2026 IL 131411, the Court unanimously affirmed a defense verdict in a medical malpractice case, holding that the trial court acted well within its discretion when it declined to declare a mistrial, issued a Prim instruction encouraging continued deliberations, and refused to conduct further questioning of a juror who hesitated during polling.
The Trial and the Jury’s Notes
After six days of testimony, much of it expert medical evidence, the jury deliberated for roughly five hours before sending a note stating it could not reach a unanimous verdict. The court directed the jury to continue deliberating. After another hour, the jury was released for the day.
The next morning, about 40 minutes into renewed deliberations, an unidentified juror sent what became known as the “Surrender Note,” stating the juror would sign a defense verdict despite firmly supporting the plaintiff, simply to bring the trial to an end.
Plaintiff’s counsel moved for a mistrial. The trial court denied the motion and instead gave Illinois Pattern Jury Instruction, Civil No. 1.05—the so-called Prim instruction—reminding jurors that verdicts must be unanimous and urging them to deliberate with a view toward agreement without abandoning sincerely held convictions.
The jury soon returned a defense verdict.
When polled, each juror answered “yes” when asked whether the verdict was his or her verdict. Juror 34 hesitated, sighed audibly, and then said “yes.” Plaintiff renewed its objections, arguing that the Surrender Note showed the verdict was impermissibly coercive and that the trial court should have asked follow-up questions of Juror 34.
Supreme Court: No Abuse of Discretion
The Illinois Supreme Court affirmed, emphasizing that decisions about mistrials in the face of possible deadlock are reviewed only for abuse of discretion. Reviewing courts may not substitute their judgment for that of the trial judge unless no reasonable person could agree with the ruling.
While the plaintiff characterized the Surrender Note as proof that a juror was abandoning sincere views, which would constitute juror misconduct, the Court agreed with the appellate court analysis that the note reasonably was open to more than one interpretation. In particular, the Supreme Court agreed that the Surrender Note could plausibly be viewed as a plea for guidance from the juror after the jury previously reported a deadlock and received little direction from the trial court.
Given that ambiguity, the Supreme Court found the trial court acted within its discretion when concluding that the note did not establish juror misconduct requiring a mistrial.
Applying the Kimble Factors
The Supreme Court then evaluated the trial court’s handling of deliberations under the familiar, non-exclusive factors governing jury deadlock discussed in People v. Kimble:
- statements from the jury that it cannot agree,
- length of deliberations,
- length of trial,
- complexity of the issues,
- communications to the judge, and
- potential prejudice from forcing continued deliberations.
Here, those considerations favored giving the jury more time: the trial lasted six days, involved complex medical testimony, and the jury reported deadlock after only a few hours. The Surrender Note arrived shortly after deliberations resumed the next morning.
Against that backdrop, the Court held the trial judge acted reasonably in denying a mistrial and allowing deliberations to continue.
The Prim Instruction Was Not Coercive
Plaintiff also maintained that giving the Prim instruction after receiving the Surrender Note was inherently coercive.
The Supreme Court rejected that claim outright, emphasizing that IPI Civil No. 1.05, which was derived from its holding in People v. Prim, was specifically drafted to avoid coercive language that plagued older supplemental instructions. Far from being suspect, the Prim instruction exists precisely to reduce the risk of undue pressure on jurors.
The Court bluntly dismissed any suggestion that using the Prim instruction in this setting was improper, noting that the instruction was adopted for exactly this kind of situation.
Polling the Jury: Hesitation Is Not Dissent
Finally, the Court addressed whether the trial court erred by refusing to question Juror 34 further after the juror “paused and sighed” during polling.
Illinois law will require follow-up questioning of a juror, but only when the juror’s response during polling reflects ambiguity or dissent. At the same time, judges are cautioned that they must avoid turning jury polling into a second round of deliberations.
Given the facts presented, the trial court did not abuse its discretion in denying plaintiff’s request for follow-up questioning of Juror 34. The record showed that Juror 34 ultimately answered “yes.” The Court noted that the trial court could observe Juror 34’s tone and demeanor firsthand. The Supreme Court concluded that the circumstances of “a pause and sigh alone” did not compel further inquiry and certainly did not establish an abuse of discretion by the trial court.
Practice Takeaways
The decision offers several lessons for trial lawyers:
- Trial judges retain wide latitude when juries report a deadlock during deliberations.
- Ambiguous juror notes do not automatically require mistrial.
- The Prim instruction remains a favored—and non-coercive—tool to address jury deadlock.
- Juror polling will be upheld absent clear expressions of uncertainty or dissent.
- Appellate courts are reluctant to second-guess trial judges who personally witness a juror’s interaction firsthand.
Schilling reinforces a core principle of trial practice: when it comes to managing jury deliberations and safeguarding verdicts, discretion largely rests with the judge sitting in the courtroom, not with appellate hindsight.
