Substantial time, preparation, and expense goes into any trial. It can therefore be extremely frustrating (to say the least) when the trial court announces a jury verdict that is defective because it violates Wisconsin’s five-sixths rule – thereby potentially requiring the entire case to be retried.
Sometimes the five-sixths rule problem could have been avoided, had the trial court perceived the issue before announcing the verdict and reinstructed the jury to continue deliberations – possibly leading to one or more dissenters changing their votes.
Other times, after reinstruction and further deliberation, the jury may remain deadlocked with multiple dissenters. The issue then becomes whether, given the number and nature of the dissents, the resulting verdict nevertheless complies with the five-sixths rule.
This article provides a primer to trial lawyers and trial courts on:
the background and meaning of the five-sixths rule;
the procedure that should be followed where it appears that a verdict may violate the rule; and
the circumstances in which a verdict, despite multiple dissenting jurors, may still be salvaged without requiring a retrial.
Origins of the Five-sixths Rule
Although the singer Meatloaf has said that “two out of three ain’t bad,” under Wisconsin law, five-sixths of the jurors (10 out of 12 jurors on a 12-person jury)1 must agree on all issues necessary to support a judgment in a civil case.
Edward Robinson, U.W. 1995, is a shareholder and litigator with Cannon & Dunphy, S.C., in Brookfield, where his practice focuses on personal injury litigation, trucking accidents, products liability, and medical malpractice.
The genesis of this rule was an amendment to Article I, Section 5 of the Wisconsin Constitution. Prior to 1922, juries in both criminal and civil cases were required to be unanimous on all questions necessary to support a judgment.
In response to the perceived difficulty in obtaining unanimous verdicts in civil cases, Article I, Section 5 was amended by referendum ballot to allow the Legislature to enact a statute providing that “a valid verdict, in civil cases, may be based on the votes of a specific number of the jury, not less than five-sixths thereof.”2
Thereafter, the Legislature enacted Wis. Stat. section 270.25 (1923), which was subsequently renumbered to section 805.09(2). This statute provides that:
A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.
Applying the Five-sixths Rule
So, what does this five-sixths requirement mean, and how is this rule applied?
It does not mean that a verdict is valid so long as at least 10 of 12 jurors agree on each question on the verdict form, regardless of the total number of different dissenting jurors. Nor does it require that the same 10 of 12 jurors agree on all questions on the verdict form.
Rather, the rule requires that the same five-sixths of the jurors must agree on all questions necessary to support a judgment on a particular claim.3
As the Wisconsin Court of Appeals has further explained:
a five-sixths analysis is not governed merely by the number of dissenting votes, but rather how the affirmative votes distribute themselves across the various questions necessary to support a judgment on a particular claim.4
To support a plaintiff’s verdict in a typical personal injury action, the same five-sixths of the jurors must agree on the answers that establish both liability and the measure of damages.5
In cases involving issues of causal negligence by both the plaintiff and defendant and the comparative fault of the parties, the same five-sixths of the jurors must agree on the answers to those questions as well.6
Consider a typical automobile crash case, where the verdict form contains questions regarding negligence, cause, and damages. There may be dissenting jurors to one or more of these questions. To determine whether there is a potential five-sixths problem, it is useful to think of a bucket containing 12 ping pong balls, each separately numbered from 1 through 12. Each numbered ball corresponds to a different juror. When reviewing such a verdict form, every time a juror dissents, remove that juror’s ping pong ball from the bucket. When the end of the verdict form is reached, are there at least 10 balls remaining in the bucket? If so, there is no five-sixths issue. If not, it is a potentially defective verdict.
In more complex cases, where there are multiple separate claims, the verdict must be reviewed on a claim-by-claim basis, rather than as a whole.7 If the plaintiff is alleging separate and independent causes of action against the defendant, the fact that there are dissents on some of the liability questions does not automatically render the verdict invalid, provided that there are at least 10 or more of the same jurors agreeing on the answers on the verdict form necessary to result in a judgment against the defendant on at least one of the causes of action. Dissents that may be important to one claim may be immaterial to another.8
When May Dissenting Votes Be Disregarded?
Even though there may be more than two dissents on the questions necessary to support a judgment, a verdict is not necessarily defective.
Dissenting votes may be disregarded under the following circumstances:
Where the court answers a question – in which one or more jurors have dissented – as a matter of law, those dissents may be disregarded.
For example, in Wendel v. Little,9 the jury found the plaintiff to be 20% causally negligent, with one dissenting juror. Two different jurors dissented to the damage award, thereby creating a potential five-sixths violation. However, because the evidence supported that the plaintiff was not contributorily negligent as a matter of law, the court was permitted to change the jury’s answer to that question, and also strike out the comparative fault question and answer, thereby reducing the number of dissenting jurors and curing the five-sixths problem.
Where the answers in which there are one or more dissents are not essential to the verdict, those dissenting votes can be disregarded.
For example, in Nommensen v. American Continental Ins. Co.,10 10 jurors determined that the defendant hospital was negligent, and a different 10 jurors determined that this negligence was not causal. The court held that, although there were four different dissenters, the finding by at least 10 jurors that any negligence on the part of the hospital was not causal was alone sufficient to support a judgment in the hospital’s favor, and, therefore, the answers to the other questions could be disregarded.
Where a dissenting vote favors the winning party, it may be disregarded because it would have supported the winner, “only more so.”
Another situation occurs where a juror’s dissent would have been more favorable to the winning party. In such cases, the dissent may be disregarded due to the unfairness in allowing the losing party to get a new trial based on the dissent of a juror that would have found in favor of the winning party, “only more so.”11
For example, in Lorbecki v. King,12 all 12 jurors agreed the plaintiff was causally negligent, but two of those jurors dissented to the answer to the comparative fault question that assigned 80% of the fault to the plaintiff, as well as to the answers to the damage questions. A third juror dissented to the answer finding that the defendant was negligent. The court held that the plaintiff could not rely upon the dissent to the causal negligence question in addition to the two additional dissents to gain a new trial, because the juror’s dissent on the causal negligence question favored the defendant. In other words, that juror did not believe the defendant bore any fault.13
What Should the Trial Court Should Do Before Announcing the Verdict?
Once the trial court has accepted and announced the jury’s verdict, it is too late to cure a five-sixths problem by reinstructing the jury and having it continue deliberations.14 For that reason, it is imperative that
A trial judge … take the time and opportunity to carefully consider a verdict before announcing it as the verdict of the jury. Unless the judge can instantly conclude that the verdict is proper, it is appropriate for the judge, upon the receipt of the verdict, to retire to chambers to consider whether the verdict is consistent and correct as to form before accepting the verdict. In the event reinstruction of the jury is necessary, counsel should, of course, be consulted and be given an opportunity to make suggestions or objections.15
Where the trial court, in consultation with the attorneys, believes that the verdict is potentially defective, it should point out the problematic answers, and reinstruct the jury with the five-sixths instruction, Wis. JI-Civil 180.16
If further deliberations fail to cure the potential five-sixths problem, the trial court may also give the “jury unable to agree” supplemental instruction in Wis. JI-Civil 195, and have the jury continue deliberations. However, that instruction may only be given once, because a trial court may not coerce a verdict where a jury is deadlocked.17
Can a Proper Verdict Be Salvaged Despite Multiple Dissents?
If a party does not raise a timely five-sixths objection to the verdict in motions after verdict, it is waived.18
If a timely objection is made to a verdict containing multiple dissents, counsel should analyze the verdict to see if any of the exceptions noted above apply to reduce the number of dissents to a number that complies with the five-sixths rule.
If not, under certain circumstances, the plaintiff may cure the defect by waiving certain claims. This most commonly occurs where there are dissents to one or more of the damage awards. A plaintiff may waive a category of damages awarded by the jury to cure a five-sixths rule violation.19
Curing the Five-sixths Issues with a New Trial
Finally, where a five-sixths violation cannot be cured, a new trial is not necessarily required on all issues – but only on the issues where the five-sixths violation occurred.
For instance, in City of West Allis v. Wisconsin Elec. Power Co. (WEPCO),20 the court remanded the case for a new trial on the issue of punitive damages only – not on the liability questions. In that case, which concerned environmental contamination, a majority of the jurors (12 of 14) agreed that WEPCO was liable for the contamination. However, there were some dissenters on the issue of whether WEPCO should also be held liable for punitive damages.
Similarly, in Utech v. Steinagel,21 an automobile accident case, the jury unanimously determined that the defendant was negligent, and that such negligence was a cause of the collision. However, there were three dissenting jurors on the damage questions, which violated the five-sixths rule. Although acknowledging the five-sixths violation, the Supreme Court remanded the matter for a new trial on damages only.
Conclusion: Be Proactive
Too much time, preparation, and expense goes into a trial to have it all be for naught because a verdict is received and announced that violates the five-sixths rule. While defective verdicts cannot always be prevented, some can – through reinstruction of the jury and further deliberations.
It is important to educate the trial judge by either filing a trial court brief on the five-sixths rule or, at a minimum, speaking with the judge during the jury instruction and special verdict conference about how to handle this potential issue should it arise, and before the verdict is received and announced.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.
1 Although juries of six are permitted in civil cases, most often, a 12-person jury is requested. See Wis. Stat. § 756.06(2)(b). For that reason, and for ease of discussion, this article assumes the situation where a civil case is tried to a 12-person jury. Parties may stipulate to proceeding to verdict with greater or fewer than 12 jurors, and may also stipulate as to what lesser number out of the total number of jurors will satisfy the five-sixths requirement. See, e.g., Bittner v. American Honda Motor Co., Inc., 181 Wis. 2d 93, 100, 511 N.W.2d 325 (Ct. App. 1993), reversed on other grounds, 194 Wis. 2d 122, 533 N.W.2d 476 (1995). However, a party that has requested a 12-person jury cannot be forced to allow fewer than 12 jurors deliberate. See State ex. rel Polk v. Johnson, 47 Wis. 2d 207, 214, 177 N.W.2d 122 (1970).
2 For an informative discussion of the background behind this constitutional amendment, see William H. Ihrig, “Five-Sixth Verdicts in Civil Jury Trials,” 11 Marq. L. Rev. 84 (1927).
3 Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 401, 331 N.W.2d 585 (1983).
4 Zintek v. Perchik, 163 Wis. 2d 439, 466, 471 N.W.2d 522.
5 City of West Allis v. WEPCO, 2001 WI App 226, ¶36, 248 Wis. 2d 10, 635 N.W.2d 873.
6 Strupp v. Farmers Mut. Auto. Ins. Co., 14 Wis. 2d 158, 109 N.W.2d 660 (1961).
7 Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶¶ 18-22, 239 Wis. 2d 129, 619 N.W.2d 137, aff’d on other grounds, 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301. See also Krueger v. Winters, 37 Wis. 2d 204, 155 Wis. 1 (1967).
8 Zintek, supra, 163 Wis. 2d at 466.
9 Wendel v. Little, 15 Wis. 2d 52, 112 N.W.2d 172 (1961). See also Britton v. Hoyt, 63 Wis. 2d 688, 693, 218 N.W.2d 274 (1974).
10 Nommensen, supra, 2000 WI App 230.
11 See Vogt v. Chicago, M., St. P. & P.R.R., 35 Wis. 2d 716, 719-21, 151 N.W.2d 713 (1967). This situation is referred to as the “only more so” exception.
12 Lorbecki v. King, 49 Wis. 2d 463, 182 N.W.2d 226 (1971).
13 Sometimes a juror may dissent to a damage award because that juror would have awarded a greater amount to the plaintiff. However, that is not something that would be readily apparent on the face of the verdict. There appears to be no reason why, in motions after verdict, the “only more so” exception should not apply to disregard that dissent, based on an affidavit from the juror that the reason they dissented was because they would have awarded more money to the plaintiff. Such an affidavit would not be used to impeach the verdict, but rather clarify the basis for the juror’s dissent. Cf. Olson v. Williams, 270 Wis. 57, 70, 70 N.W.2d 10 (1955) (courts will generally not consider affidavits of jurors to impeach a verdict).
14 See State v. Knight, 143 Wis. 2d 408, 416-18, 421 N.W.2d 847 (1988).
15 Westfall v. Kottke, 110 Wis. 2d 86, 97-98, 328 N.W.2d 481 (1983) (internal citations omitted).
16 See Wis. Stat. § 805.13(5). See also Bensend v. Harper, 2 Wis. 2d 474, 478, 87 N.W.2d 258 (1958).
17 Wisconsin Judicial Benchbook at CV 19-6 (4th ed. 2013).
18 Suchomel v. University of Wisconsin Hosp. & Clinics, 2005 WI App 234, ¶11, 288 Wis.2d 188, 708 N.W.2d 13 (Ct. App. 2005) (“a party waives all claims of error not raised in motions after verdict.”).
19 See Krueger v. Winters, 37 Wis. 2d 204, 155 N.W.2d 1 (1967). See also Erdmann v. Wolfe, 9 Wis. 2d 307, 101 N.W.2d 44 (1960).
20 City of West Allis v. Wisconsin Elec. Power Co., 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873.
21 Utech v. Steinagel, 54 Wis. 2d 507, 196 N.W.2d 674 (1972).