Vol. 76, No. 10, October
Letters to the editor: The Wisconsin Lawyer
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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
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
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
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
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
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
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
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,
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.