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    Letters to the Editor

    Daniel FlahertyDavid ErspamerJames Low

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    Wisconsin Lawyer
    Vol. 76, No. 10, October 2003


    Letters to the editor: The Wisconsin Lawyer publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may be edited for length and clarity. Letters should address the issues, and not be a personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them to org wislawyer wisbar wisbar wislawyer org.

    Instruct Jurors on the Meaning of Their Decisions

    My congratulations to the Hon. Robert E. Kinney and Jordana Thomadsen for their August 2003 article, "Examining Wisconsin Jury Instructions." The authors showed remarkable insight into what I believe to be the single greatest deficiency in the Wisconsin jury system. The authors suggest that Wisconsin should adopt a "sunshine rule" allowing judges to instruct jurors on the meaning of the verdicts. I wholeheartedly agree with that suggestion.

    The authors point out that Wisconsin is in the distinct minority of only three states that continues to adopt a "blindfold rule," which prohibits advising the jury of the effect of its answers to special verdict questions. Wisconsin embraces the "blindfold rule" because "jurors will manipulate the ultimate result if they are instructed how to do so...."

    In response, I submit that it is simply naïve to believe that jurors will make their decision in a vacuum, as is hoped based on Wisconsin law. To the contrary, jurors are constantly thinking about the effects of their answers and, in fact, believe that it is their responsibility to render a verdict that will lead to an "ultimate result." Jurors therefore go on in an attempt to "manipulate the ultimate result" but often do so mistakenly with an unintended result.

    A case I tried to a jury approximately five years ago illustrates this point. The case involved a claim of premises negligence against a bar owner. My client had been severely beaten, apparently at random, by a drunk and belligerent patron. The employees of the bar clearly admitted that they had been told that the patron had been violent and intended to hurt somebody. After the jurors were in deliberations, they issued a written question asking the judge, "if we answer 'no' to the (negligence) question, will the plaintiff receive any money?" The judge responded by saying that the jury should not be concerned about that question. The jury went on to award a substantial sum, but went on to answer "no" to the negligence question. Immediately after rendering the verdict, the jurors came up en bloc, shook my client's hand, and told him that he deserved every penny of the amount they had awarded. When advised that they awarded nothing, they were crestfallen. They also were extremely angry.

    The jurors explained to me that they felt that the bar owner had been remiss and negligent in failing to react, after he had been warned that the bar patron intended to attack another patron. However, they gave consideration to the fact that the bar was a family-owned enterprise and that it operated in a very small community. They thought an effective compromise was to award a substantial amount of money, but then to answer "no" to the liability question, therefore taking away some of the sting of the substantial verdict. They went on to explain that they felt that the substantial verdict was enough punishment for the small town bar owners.

    The jurors in that case were absolutely irate when they learned they were mistaken and that their attempt to "manipulate" the end result actually had resulted in the opposite effect, preventing any recovery.

    In two other cases I have tried, I have had juries inquire about the effect of their answer on the liability issue to the award of damages. In each case, I have lost the claim. In those cases, I had been told by the jurors that their entire intention was thwarted by lack of instruction of the effect of their answer to the negligence question. The fact that they were instructed to answer the damage question, irrespective of their answer to the negligence question, left them with the mistaken belief that they were awarding damages despite their first answer. They fully intended that they awarded damages, and were victimized by a legal system that failed to advise them of the significance of the negligence question.

    A second problem with the system is the prohibition against advising jurors of the effect of their comparison to the negligence answers. Again, jurors' intentions are thwarted when they are not advised of the effects of those answers. This becomes especially evident in a case where there is a close liability situation (for example, 50/50 comparison of negligence). I talked to several jurors who have expressed concerns that in a close liability situation, they have reduced the awards to plaintiffs based on plaintiff's contributory negligence (that is, plaintiff should have received $50,000, but because jurors felt plaintiff was one-half at fault, reduced that award to $25,000). The jurors again expressed concern when they learned that based on their responses to the comparative negligence questions, a second reduction has taken place (that is, the award has been reduced another 50 percent down to $12,500).

    In Minnesota, where I also practice, jurors can be and are advised of the effects of their answers. Jurors are cautioned by the court and both counsel that if they choose to answer the negligence question "no" then there will be no award to plaintiff. They are also cautioned about the effects of the comparison answers. Although certainly I have lost jury trials in Minnesota, I have come away with the feeling that at least the verdict reflects the jury's true intention. Sadly, I have repeatedly walked away from Wisconsin trials with the knowledge that the jury was acting in the dark, and that the failure to advise jurors of the effect of their answers resulted in defeating the whole jury process because the jury had "botched the job because they lacked the requisite knowledge."

    David M. Erspamer, Amery

    Just Results More Likely With Informed Jurors

    The article in the August issue by Judge Kinney and Ms. Thomadsen examining the majority of states' "sunshine rule" as opposed to Wisconsin's "blindfold rule" on advising the jurors of the effects of their special verdict answers, was well done and provocative. The authors' conclusion is that whether or not jurors are told to answer each question in the abstract and not to consider their effect on the results, jurors do try to guess how to accomplish what they want to, sometimes with unintended, disastrous, or very humorous results.

    It reminded me of a case we were involved in back in the early 1960s, which eventually got to the Wisconsin Supreme Court, Donlea v. Carpenter, 21 Wis. 2d 390. This was a case tried under the old "50 percent bar" rule and involved a collision resulting in two deaths and serious injuries to others. There was obvious negligence on both drivers, but we feared a 50/50 negligence apportionment, which would bar any recovery. Of course, we were not allowed even to infer to the jury what the apportionment of negligence would cause and were astounded when the jury verdict found our plaintiff driver 49 percent and the defendant driver 51 percent negligent.

    A few days after the verdict, I ran into one of the jurors, whom I had known vaguely to be a safety director for a local trucking company. I asked him how the jury had come up with the 51/49 percent apportionment. He said, "Well, I knew that a 50/50 finding meant no recovery for anybody; I told that to the other jurors and we quickly agreed that since the plaintiff should get something, we had to give him something less than half of the negligence. I suggested 51/49 percent, and the other jurors agreed."

    Here is at least one case in which the jurors did know the results of their apportionment.

    In our case, I suppose only the Lord knows whether justice really prevailed, but I think the majority rule that allows telling the jury the facts of life, is more apt to produce just results than keeping jurors in the dark and having them astounded at what they actually had done!

    Daniel T. Flaherty, La Crosse

    Citing to Unpublished Opinions

    I was recently involved in the preparation of a trial court brief with the assistance of a law student clerk. The clerk had prepared a marvelous brief and argument supporting our client's position in the case. When I reviewed it with the student and asked for verification of the publication of the decision cited, the student learned that all of the "good law" was in unpublished decisions.

    Needless to say the brief was reconstructed and all of the unpublished decisions removed.

    A short while later, the trial court decided the case in our client's favor and cited all of the unpublished authority we had taken out. The case is settled.

    James E. Low, Wausau

    [Editor's Note: For more information, please see "Supreme court denies petition to cite unpublished opinions for persuasive value only" in the August 2003 Inside the Bar newsletter, www.wisbar.org/newsletter/2003/08/scdp.html.]

    Correction to September Supreme Court Digest

    Under the heading "Criminal Law," for the case State v. Hamdan, the carrying a concealed weapon (CCW) statute was misidentified. The correct statute is Wis. Stat. section 941.23.

    WL Editors

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