Vol. 76, No. 8, August
Examining Wisconsin Jury Instructions
Should Wisconsin reexamine its "blindfold rule"
approach to instructing jurors in civil cases and join the majority of
"sunshine rule" states by allowing judges to instruct jurors on the
meaning of their verdicts? The authors compare the opposing approaches
and their rationales and then ask, "since jurors inevitably guess at the
results of their findings, does it really serve justice to keep jurors
in the dark?"
by Hon. Robert E. Kinney & Jordana Thomadsen
videotape frequently shown at Judicial Education seminars in Wisconsin
depicts a teacher addressing students on the first day of class. The
"Now, I realize that you were summoned to this class without signing
up for it and you haven't even been told what this class is about. This
course could take a few days or a few weeks. I'm not sure. This course
could be taught by 10 or 20 different teachers, and it will involve a
subject you know nothing about. In fact, if you knew something about the
subject ... you couldn't take the class."
The teacher concludes by saying he will spend only 15 or 20 minutes
on the final exam, which will probably use unfamiliar terms that won't
be explained. The students will be locked in a room until they agree on
an answer. Finally, depending on the students' answer, someone they
don't know will win or lose. Compared to the videotape, the reality in
Wisconsin is even more disconcerting: after jurors render their verdict,
they still will not know if the party they picked to win will
win or lose.
This videotaped parody of Wisconsin's jury system always gets a few
laughs from the judges. They like it because it is accurate: one of the
essential components of Wisconsin's jury system is to keep jurors in the
dark. Wisconsin should reexamine its "blindfold rule" approach to
instructing jurors in civil cases and join the majority of "sunshine
rule" states by allowing judges to instruct jurors on the meaning of
Background on the Wisconsin Rule
Wisconsin, through its supreme court, articulated in 1890 the rule it
continues to follow today: juries should not be instructed on the effect
of their responses when directed to use a special verdict form.1 At that time, the issue most often arose in the
context of a contributory negligence defense when a finding that the
plaintiff was at all at fault would, unbeknownst to the jurors, bar that
plaintiff from all recovery.
Finding the consequences of the contributory negligence rule harsh,
the Wisconsin Legislature became a leader in 1931 when it replaced the
state's contributory negligence laws with a comparative negligence
regime.2 Under the new comparative regime, a
plaintiff was barred from recovery only if that plaintiff was found to
share half or more of the fault.3 The vast
majority of states have, of course, joined Wisconsin in abandoning the
contributory negligence doctrine and its complete bar to recovery upon a
finding of any fault.4
Although more plaintiffs were entitled to recover under the
comparative negligence theory, some discomfort remained over special
verdicts that apportioned fault at 50/50.5
Juries seemed to naturally choose this middle-point that left plaintiffs
without recovery. After considering and rejecting the option of
informing jurors what effect their apportionment of fault would have on
the final judgment, the Wisconsin Legislature instead tweaked the
contributory negligence statute by raising the bar against plaintiffs'
recovery to 51 percent of fault.6 The
Legislature occasionally considers changes to its longstanding position
against instructing jurors of the effect of their verdicts, but has
always retained its 1890 rule.7
Wisconsin's approach to special verdict instructions was at first
adopted by most states as the popular "Wisconsin rule." By the late
1970s, however, the rule came under attack due to a perception that
jurors continued to consider the effect of their verdicts even when told
not to. States that had adopted Wisconsin's approach abandoned it both
judicially and legislatively, and the Wisconsin rule came to be called
"the blindfold rule," while the opposing approach became "the sunshine
rule." Today, only Wisconsin, Illinois, and Texas ret ain the blindfold
The Wisconsin Rule
Jurors serving in Wisconsin personal injury cases are instructed as
"You should not concern yourself about whether your answer will be
favorable to one party or to the other nor with what the final result of
this lawsuit may be."9
Robert E. Kinney, U.W. 1971, has served as
an Oneida County circuit court judge for 27 years. He is a member of the
funding subcommittee of the Policy and Planning Advisory Committee
(PPAC) to the Wisconsin Supreme Court and a former member of the Civil
Jordana Thomadsen, Michigan 2000, served as court
commissioner and law clerk for Oneida and Vilas counties. Previously of
Quarles & Brady LLP, she now practices with Knight & Associates
Because this instruction may not be sufficient to curb jurors' desire
to affect the outcome of a case, it is combined with an effort to curb
their ability to do so. Neither the judge nor counsel for the parties
may tell the jurors how their answers to the special verdict questions
will affect any awards.10 Jurors cannot be
told that the plaintiff will not recover if his or her degree of fault
exceeds 50 percent or that the plaintiff's recovery will be reduced to
reflect his or her fault.
Underlying the blindfold rule is the conviction that jurors will make
their best decisions when given only the information they need to answer
the questions presented. Additional information is a distraction at best
and a temptation at worst. Jurors will manipulate the ultimate result if
they are instructed on how to do so. Cases from Wisconsin, the pioneer
of the blindfold rule, present the best rationales for the policy of not
instructing jurors on the effect of their verdicts.11 In McGowan v. Story, the Wisconsin
Supreme Court accepted an appeal in which McGowan, the plaintiff
appellant, was left with no recovery because he had been found 50
percent negligent in a case governed by Wisconsin's original version of
comparative negligence. McGowan argued that the trial judge should have
instructed the jury that a finding that McGowan was 50 percent negligent
would preclude him from any recovery. Accepting that Wisconsin law would
not permit such an instruction, McGowan relied on the emerging trend of
sunshine laws to argue that the court should judicially abandon the
longstanding blindfold approach.
In rejecting the invitation to adopt the sunshine approach, the
McGowan court laid out the traditional defenses of the
blindfold approach as presented by earlier Wisconsin cases, law review
articles, and other commentary. The court's foremost objection to fully
informing jurors was that it would be contrary to the jury's role as
finder of fact only. Giving the jury the tools to mold its answers to
reach a desired result would usurp the role of the judge to implement
the comparative negligence statutes and the role of the legislature to
decide the comparative negligence limits.12
According to the McGowen court, jurors are merely fact-finders
for a reason: "the non-expert juryman is more liable than the
experienced lawyer or judge to be led away from the material issues of
fact involved by some collateral circumstances of little or no
significance, or by sympathy, bias, or prejudice...."13 Informing jurors also would negate the purpose
of Wisconsin's special verdict: to separate the questions of fact from
concern about the effect of verdict answers.14
The McGowan court also rejected the argument that the jury
may manipulate verdict answers to reach a certain result whether or not
the jurors are instructed on how to do so, criticizing this argument as
based on a lack of faith in jurors.15 As a
final objection, the court expressed concern that advising jurors of the
effect of their answers could result in great confusion due to the
complexities of the comparative negligence system.16
The Sunshine Rule
In 1978 the tide began to change and state supreme courts began
abrogating the blindfold rule in favor of a rule based on the sentiments
expressed in a 1975 federal case that a "jury is not to be set loose in
a maze of factual questions, to be answered without intelligent
awareness of the consequences."17
In Seppi v. Betty a jury found the plaintiff and defendant
each 50 percent negligent under a comparative negligence statute that
precluded any recovery for a plaintiff with negligence greater than 49
percent. In Seppi, the Idaho Supreme Court's reasoning stemmed
from a single premise: whether it is seen as good or bad, "jurors are
concerned about the effect of their verdicts on the ultimate outcome of
the case and the use of a special verdict or special interrogatories
does not magically eliminate that well-known trait of American
juries."18 The court supported this premise
with references to various blindfold cases in which the jurors requested
information on the effects of their answers or stated after the special
verdict that a certain result (other than the one achieved) was
intended.19 The court's argument is
well-summarized in a single paragraph:
"It would be incredibly naïve to believe that jurors, after
having listened attentively to testimony of the parties and a parade of
witnesses and after having heard the arguments of counsel, will answer
questions on a special verdict form without giving any thought to the
effect those answers will have on the parties and to whether their
answers will effectuate a result in accord with their own lay sense of
justice. With respect to most questions, the jury would have to be
extremely dullwitted not to be able to guess which answers favor which
parties. In those instances where the legal effect of their answers is
not so obvious, the jurors will nonetheless speculate, often
incorrectly, and thus subvert the whole judicial process."20
Two months after Seppi, the Kansas Supreme Court followed
suit with Thomas v. Board of Township Trustees of Salem
Township.21 The Thomas court
cited arguments substantially similar to those in Seppi and
added that it believed the sunshine approach better recognized "that
jurors collectively represent the conscience of the community and will
do their best to follow the law as contained in the instructions of the
In Roman v. Mitchell,23 the New
Jersey Supreme Court adopted the sunshine rule in a case governed by a
comparative negligence statute that, like Wisconsin's, bars complete
recovery only when a plaintiff bears 51 percent or greater negligence.
The Roman court responded to the concerns of the
McGowan court by reasoning that result instructions need not be
given in cases involving complex comparative negligence inquiries, that
the trial court may set a verdict aside if it appears to be the result
of jury "whim or fancy," and that instructing the jury on the effect of
its answers "is a much more effective way to control the problems of
misunderstanding and bias in jury verdicts than attempting to blindfold
Twenty-first century cases continue to follow the sunshine approach,
one court reasoning that "the jury's lack of knowledge does not
eliminate sympathy and bias, but merely insures that the jury makes its
decision in greater ignorance."25
Despite the widespread adoption of the sunshine approach throughout
the rest of the country, there is no indication that the trend will
carry Wisconsin any time soon. This may be because the focus of the
debate is sometimes itself result-oriented and because of a related
perception that the sunshine rule will significantly favor plaintiffs.
As argued below, sunshine rules should be seen for what they are:
procedural rules, the most likely impact of which is that our jury
system will function more smoothly and jurors will feel more valued.
Role of the Jury. Part of the sunshine/blindfold
debate as reflected in court decisions is the proper role of jurors in
the court system. The principal objection to the sunshine rule in
Wisconsin's McGowan case is that jurors should not determine or
interpret law. In contrast, some sunshine opinions quote Roscoe Pound
for the concept that juries are the "great corrective of the law in its
actual administration," and Justice Holmes for the concept that the
jury's "popular prejudice keeps the law in accord with the wishes of the
community."26 This article, while
acknowledging the sometimes artificial line between issues of fact and
law, presumes that the preferred role of the jury is that of fact-finder
Imperfect Solution to an Imperfect System. The crux
of the sunshine/blindfold debate is not an argument over what is ideal
but an argument over whether that ideal is attainable and, if not, how
to address the shortcomings of the system. Jurors are not robots; it is
human nature that they should concern themselves with the end result of
their labor. The question becomes what to do about this propensity.
The plaintiffs' bar has long suggested fully instructing jurors on
their verdicts. Its primary argument has been that unless jurors are
instructed as to the meaning of their answers to verdict questions,
jurors will "reach a conclusion they did not intend."27 The most common situation involves jurors who
have found the plaintiff 51 percent or more negligent but have answered
the damages questions generously. In exit polling, jurors report that
they intended to award substantial damages to the plaintiff.28 The argument suggests that because the result
was unintended, it is therefore illegitimate.
This argument contains the seeds of its own rebuttal. If jurors
intended to award substantial damages, but their answer to the
comparative negligence question legally precludes such an award, that
does not call into question the wisdom of their comparative negligence
answer. The argument itself simply provides fodder for its opponents,
and for the proposition that if jurors really knew what they were doing,
they would manipulate their answer to the comparative negligence
question to find for undeserving plaintiffs.
On the other side, and just as result-oriented, are the opponents of
the sunshine rule. Illinois, the only state to switch to a blindfold
approach after the 1970s, statutorily adopted the blindfold approach in
1986 as part of broader tort reforms. The rhetoric surrounding the
adoption made clear that the purpose of the switch had little to do with
the ideals or smoother functioning of the jury system but rather with
the unsubstantiated perception that such a change would reduce tort
If increased jury awards were the primary reason for and likely
outcome of enacting the sunshine rule, its widespread adoption would be
mysterious. But this has simply not been the experience in those states
that have adopted the rule, and opponents of the rule have articulated
no reason to believe that Wisconsin citizens selected for jury service
will act differently from those of other states.
An essentially similar debate was played out more than 70 years ago
over our "direct action" statute that permits the joinder of insurance
companies as defendant parties in automobile accident cases. One can
picture the author of a 1934 Marquette Law Review article
bristling as he wrote that "prejudice is aroused which causes the jury
to disregard the evidence as to negligence and find all issues in favor
of the plaintiff as well as to increase the amount awarded as
damages.... an act of the Legislature, which vitiates [the prohibition
against mentioning insurance companies] and in effect denies a
litigant's right to a fair and impartial trial, is unconstitutional as
an invasion of the judicial power vested in the courts."30 Of course, this author's position was rejected;
Wisconsin adopted its direct action statute.
Generations of judges have subsequently permitted jurors to hear
about liability insurance coverage in a wide variety of personal injury
lawsuits. Interestingly, no one has claimed that verdicts in Wisconsin
are larger than in our neighboring state of Illinois, where reference to
insurance companies in front of the jury is strictly prohibited.
The only empirical study on the issue finds that informing jurors
does not substantially increase the frequency or amount of awards, and
concludes: "the net economic impact of adopting either a sunshine or a
blindfold rule for a jurisdiction appears to be statistically
insignificant."31 Even aside from the
empirical evidence, concerns about unsubstantiated jury awards should
dwindle as the rhetoric of tort reform catches on. More often, it is now
the defendant rather than the plaintiff who asks for a jury. For
example, in a recent Oneida County trial in which a personal injury
plaintiff elected not to demand a jury trial or pay the required jury
fee, counsel for the defendant corporation, upon belatedly discovering
the situation, strenuously urged the court to try the case to a jury
despite his untimely jury demand and fee payment.
The sunshine approach deserves consideration not because of perceived
changes in awards, but because it will avoid the difficulties and
disillusionment that occur when jurors inevitably guess at the results
of their findings. In two recent Oneida County civil jury trials, during
deliberations jurors asked questions that clearly showed their concern
about the final outcome of the case. In one case, they asked, "If we
decide 50/50, will the plaintiff receive 50 percent or 100 percent?" In
the other case, the attorneys had stipulated to past medical and
hospital bills of $30,000. The jurors asked, "Does the plaintiff get
that amount?" In both cases, the court dutifully dodged the jurors'
questions, reread the pertinent instructions, and told them to keep
their collective heads in the sand. In the latter case, this
reinstruction was followed by the jury's anomalous answer of "0" for
future pain and suffering, even though it was undisputed that the
plaintiff would have to undergo another surgery for removal of a 16-inch
rod in his leg. Apparently, the jurors simply assumed that the plaintiff
would be receiving the $30,000 stipulated damages, and did not want to
see him receive any more. Despite admonitions, jurors anticipated the
consequences of their verdict but, in the process, botched the job
because they lacked the requisite knowledge. In the latter case, there
was no need for a new trial, but the obviously confused verdict response
invited that possibility. No doubt many Wisconsin judges have had to
retry jury cases because no reasonable jury could have answered some
jury questions as they did, given the trial evidence.
Experiences of other Wisconsin courts vary. A survey of Wisconsin
judges from Districts V, IX, and X32 shows
that while 53 percent of these judges believe that jurors speculate as
to the effect of their responses, only 27 percent of these judges
believe that this speculation causes jurors to alter their
verdicts.33 Overall, 41 percent of the
judges favor the current blindfold approach, 34 percent favor the
sunshine approach, and 25 percent have no present position on the
matter. As these numbers show, dissatisfaction with the blindfold system
is not based solely on the potential inconvenience for courts that could
result from botched verdicts.
The most grave concern over the blindfold rule is that it leads to
public dissatisfaction with our justice system. After the May 1999
ABA-sponsored National Conference on Public Trust and Confidence in the
Justice System, Wisconsin Supreme Court Chief Justice Shirley
Abrahamson, in conjunction with the State Bar of Wisconsin and the
League of Women Voters, sponsored a project on public trust and
confidence in the Wisconsin justice system. Part of this project
involved surveying jurors. While former jurors generally reported
satisfaction with their jury service, jurors also were "frustrated ...
because they sometimes felt they did not get all the facts of the case
and doubted their ability to make decisions in complicated cases." Among
the recommendations was "increasing juror's understanding of the court
process, including the case they are asked to hear.... [t]he system
benefits from having a better-informed and more confident juror and the
juror has a better overall experience."
The lucky citizen may have contact with the justice system only as a
juror. Causing jurors to feel bamboozled after fulfilling a civic
responsibility can only add to the negative impressions made by our
system. Wisconsin government has a relationship of openness with its
citizens; striving for an unattainable ideal in our jury system is not a
sufficient reason to abandon this openness when our citizens report for
A final challenge to our blindfold system is the vulnerability that
may result from the system's reliance on ignorance in an age of
information. Consider this situation: A major wrongful death case is set
for trial. Some weeks before the trial, counsel file their requested
jury instructions and proposed special verdict forms. As the trial
begins, a local radio talk show host discusses the case with a local
attorney as his legal consultant guest. Using a copy of the proposed
special verdict, the consultant describes in detail the meaning of
various hypothetical answers that the jurors might return.
Alternatively, imagine a litigant's friend or relative standing at the
courthouse steps passing out a flyer explaining in two sentences the
51-percent-bar rule. Or more simply, the system could be undermined by a
single well-informed juror or, worse yet, a single misinformed juror. A
system dependent upon jury ignorance is inherently vulnerable.
It is time for Wisconsin to take a serious look at adopting the
approach chosen by nearly every comparative negligence state. While our
current system is based on an admirable ideal, that ideal simply is
unattainable. Fear of the potential consequences of adopting a sunshine
approach has no basis in the experiences of other states and should not
deter Wisconsin from modernizing its civil justice system.
1Ryan v. Rockford Ins.
Co., 77 Wis. 611, 46 N.W. 885, 886 (1890).
21931 Wis. Act 244.
4Alabama, Maryland, North Carolina,
Virginia, and Washington D.C. retain the contributory negligence
5See Glenn E. Smith,
Comparative Negligence Problems with the Special Verdict: Informing
the Jury of the Legal Effects of Their Answers, 10 Land & Water
L. Rev. 199, 223-24; Report of the Wisconsin Legislative Council p. 107
6See 1971 A.B. 50.
7See, e.g., 1985 S.B. 57;
1997 S.B. 320.
8The debate is irrelevant for
states that have pure comparative negligence schemes. See,
e.g., Wash. Rev. Code Ann. § 4.22.05; Richie-Gamester v.
City of Berkley, 597 N.W.2d 517 ("hybrid pure" scheme);
Gustafson v. Benda, 661 S.W.2d 11 (Mo. Banc 1983); Hoffman
v. Jones, 280 So. 2d 431 (Fla. 1973); Scott v. Rizzo, 96
N.M. 682, 634 P.2d 1234 (1981).
For states that retain a general verdict approach, juror ignorance of
the effect of their findings is not an option. See Alabama St.
R.C.P. 49; Del. St. Super. Ct. R.C.P. 49; Miss. R. Civ. P. 49; N.H. Rev.
Stat. Ann. § 507:7-a; R.I. Gen. Laws Ann. §9-20-4; 12 Vermont
Stat. Ann. §1036; Ky. R. Civ. P. 49.02; Johnson v. Smith,
403 S.E.2d 685, 257 Va. 540 (1991); Okla. St. T. 12 § 587; Ohio R.
Civ. P. 49; S.D. Stat. § 15-6-49(b)
Some states that apply modified comparative negligence through
special verdicts mandate instructions on the effect of special verdict
findings. See Gunnell v. Arizona Pub. Serv. Co., 46 P.3d 399
(Ariz. 2002); Little Ocmulgee Elec. Membership Corp. v.
Lockhardt, 441 S.E.2d 796 (Ga. Ct. App. 1994); Walter v.
Walmart Stores Inc., 748 A.2d 961 (Me. 2000); Russel v.
Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001); Colo. Stat. §
13-12-111.5(5); Conn. Stat. § 52-572h(e); Iowa Stat. §
668.3(5); Minn. R. Civ. P. 49.01(b); Nev. Stat. § 41.141; Ore. Rev.
Stat. § 18.480(2); Wyo. Stat. Ann. §1-1-109(c)(i)(B). Others
give judges discretion to so instruct or allow for instructions by or at
the request of a party. Ariz. Stat. § 16-64-122(d); Kaeo v.
Davis, 68 Haw. 447, 719 P.2d 387 (1986); Seppi v. Betty,
99 Idaho 186 (1978); Bell v. Whitten, 722 So. 2d (La. Ct. App.
1998); Kettinger v. Black & Decker Mfg. Co., 432 N.E.2d 736
(Mass. Ct. App. 1982); Sollin v. Wangler, 627 N.W.2d 159 (N.D.
Although Texas retains a blindfold system, the jury may be instructed
to proceed to the damages question only if the plaintiff is 50 percent
or less at fault. H.E. Butts Grocery Co. v. Bilotto, 985 S.W.2d
22 (Tex. 1998).
9WI JI-Civil 100, Opening.
10McGowan v. Story, 70
Wis. 2d 189, 193, 234 N.W.2d 325, 327 (1975).
11Law review articles provide
similar and additional arguments in support of the blindfold rule.
See, e.g., Stuart Schaffer, Informing the Jury of the Legal
Effect of Special Verdict Answers in Comparative Negligence
Actions, 1981 Duke L.J. 824.
12McGowan, 70 Wis. 2d at
198-99, 234 N.W.2d at 329-30.
13Id. at 197, 234 N.W.2d
at 329 (quoting Ryan, 77 Wis. at 615-16, 46 N.W. at 886).
Anderson v. Seelow, 224 Wis. 230, 234, 271 N.W. 844, 846
15Id. at 197, 234 N.W.2d
16Id. at 198, 234 N.W.2d
17Porche v. Gulf Miss. Marine
Corp., 390 F. Supp. 624, 632 (E.D. La. 1975).
18See Seppi, 99 Idaho at
192, 579 P.2d at 689.
20Id. at 193, 579 P.2d
21224 Kan. 539, 582 P.2d 271
22Id. at 551, 582 P.2d
2382 N.J. 336, 413 A.2d 322
24Id. at 346-47, 413
A.2d at 327.
25Sollin v. Wangler, 627
N.W.2d 159, 163 (N.D. 2001).
26See, e.g., Seppi, 99
Idaho at 193, 579 P.2d at 690.
27See testimony of Wisconsin
Academy of Trial Lawyers attorney in support of 1997 Senate Bill 320
before Senate Judiciary Committee, Nov. 25, 1997.
29See Jordan Leibman et
al., The Rise and Fall and Perhaps Rise Again of the "Blindfold"
Rule in Modified Comparative Fault Cases: A Proposed Experiment,
102 Dickinson L. Rev. 33, 55-56 (1997) and quotes therein.
30James E. Coleman, The
Defendant Insurance Company in Automobile Cases, 19 Marq. L. Rev.
6-7 (December 1934).
31Jordan Leibman et. al., The
Effect of Lifting the Blindfold from Civil Juries Charged with
Apportioning Damages in Modified Comparative Fault Cases: An Empirical
Study of the Alternatives, 36 Am. Bus. L.J. 349 (1998).
32These districts include the
following counties: Ashland, Barron, Bayfield, Burnett, Chippewa, Dane,
Douglas, Dunn, Eau Claire, Florence, Forest, Green, Iron, Lafayette,
Langlade, Lincoln, Marathon, Menominee, Oneida, Polk, Rock, Rusk,
Sawyer, Shawano, St. Croix, Taylor, Vilas, and Washburn.
33The survey polled 66 judges
with an 89 percent response rate. The questions and responses were as
In your experience:
1. Do jurors generally follow their charge not to concern themselves
with the results of their special verdict responses? Yes (70%), No
(20%), Skipped (10%)
2. Do jurors generally speculate as to the effect of their responses
to special verdict responses? Yes (53%), No (36%), Skipped (10%)
3. If you answered "yes" to question 2, does juror speculation as to
the effect of special verdict responses cause jurors to alter their
verdict responses or is the speculation more of a harmless byproduct?
Alters verdicts (27%), Harmless byproduct (73%), (total response to this
question used to determine percentages = 33)
4. Wisconsin is a "blindfold" state, i.e., Wisconsin judges do not
instruct jurors on the effect of special verdict answers. Other states
follow a "sunshine" approach whereby jurors are instructed on the legal
consequences of their special verdict responses. For example, in a
sunshine state, jurors may be informed that if they find a plaintiff to
be 51% at fault, that plaintiff will recover nothing. Do you have a
position on which approach is better law? "Blindfold" preferred (41%),
"Sunshine" preferred (34%), No position (25%).