However, under the facts of this case, I believe defendants were prejudiced by the trial court's refusal to give a jury instruction on the "clear and convincing" evidence standard. There is a "real distinction" between the differing burdens of persuasion in different kinds of cases and, therefore, "it is essential that jurors receive a definition or description of the applicable burden of proof" ( Rikard v. Dover Elevator Co. (1984), 126 Ill. App.3d 438, 441, 467 N.E.2d 386, 388) so long as the instruction would not mislead the jury. ( In re Estate of Casey (1987), 155 Ill. App.3d 116, 122, 507 N.E.2d 962, 966.)

See, e.g., IPI Civil (2000) No. 500.02 ("Definition — `Active Conduct' — `Passive Conduct'"). The necessity of defining legal terms was discussed in Rikard v. Dover Elevator Co., 126 Ill. App. 3d 438, 441, 467 N.E.2d 386, 388 (1984). In Rikard, reversible error was committed when the trial court failed to instruct the jury of the burden of proof to be applied.

"[I]t is essential that jurors receive a definition or description of the applicable burden of proof." Rikard v. Dover Elevator Co., 126 Ill. App.3d 438, 441 (1984). In the present case, the instruction concerned the burden of proof.

The instructions, as given to the jury, did not state that it was plaintiffs' burden to prove that Reeves was an agent of Dean Foods. “ ‘[I]t is essential that jurors receive a definition or description of the applicable burden of proof.’ ” In re Timothy H., 301 Ill.App.3d 1008, 1016, 235 Ill.Dec. 370, 704 N.E.2d 943 (1998) (quoting Rikard v. Dover Elevator Co., 126 Ill.App.3d 438, 441, 81 Ill.Dec. 686, 467 N.E.2d 386 (1984)). Further, “[a] trial court's nondescription of the applicable burden of proof cannot be harmless because the jury's deliberations, findings, and ultimate decision were rendered through an improper scope of analysis.”

" '[I]t is essential that jurors receive a definition or description of the applicable burden of proof.' " In re Timothy H., 301 Ill. App. 3d 1008, 1016 (1998) (quoting Rikard v. Dover Elevator Co., 126 Ill. App. 3d 438, 441 (1984)). Further, "[a] trial court's nondescription of the applicable burden of proof cannot be harmless because the jury's deliberations, findings, and ultimate decision were rendered through an improper scope of analysis."

The court concluded that the respondent was denied a fair trial because the court failed to provide, sua sponte, the Illinois pattern instruction defining the applicable burden of proof. Timothy H., 301 Ill. App. 3d at 1016, 704 N.E.2d at 948 ("`[I]t is essential that jurors receive a definition or description of the applicable burden of proof'"), quoting Rikard v. Dover Elevator Co., 126 Ill. App. 3d 438, 441, 467 N.E.2d 386, 388 (1984). We disagree with the holding in Timothy H. In contrast to the quotation from Rikard relied upon in Timothy H., this court has not called for a definition of "clear and convincing" to be given.

We reverse and remand in the instant case, however, because we part company with Casey on the issue of the amenability of the instruction at issue to harmless error analysis. (See Rikard v. Dover Elevator Co. (1984), 126 Ill. App.3d 438, 441, 467 N.E.2d 386, 388 ("[I]t is essential that jurors receive a definition or description of the applicable burden of proof").) A trial judge's misdescription of the proper burden of proof is resistant to mending on appeal because the verdict it produces presents to the reviewing court not correctable findings of facts, but rather, because they were made through an improper optic, what must be deemed to be no findings at all.

Some members of a jury may, as a practical matter, be familiar with the criminal burden of proof due to prior jury service. (See Rikard v. Dover Elevator Co. (1984), 126 Ill. App.3d 438, 467 N.E.2d 386.) This fact increases the possibility of misleading jurors as to the quantum of proof respondents must produce.

Also, IPI Civil 2d No. 33.01 was submitted by defendant which employs the term "ordinary care"; however, no instruction was offered defining this term. ( Rickard v. Dover Elevator Co. (1984), 126 Ill. App.3d 438, 441, 467 N.E.2d 386.) Clearly, defendant was entitled to have the jury properly instructed on the principal issues in the case.