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    Wisconsin Lawyer
    December 01, 2003

    Letters to the Editor

    Terry Johnson; Edward Grutzner

    Wisconsin Lawyer
    Vol. 76, No. 12, December 2003

    Letters

    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 wislawyer@wisbar.org.

    Jurors Should Determine Facts, Not Results

    A more compelling argument for why jurors should not be informed of the effect of their special verdict answers could not be found than the letter ["Just Results More Likely With Informed Jurors"] from Mr. Flaherty in the October issue.

    Nowhere in the letter is there a hint that any of the jurors felt the defendant was in fact more negligent than the plaintiff. Nowhere in the letter is there even a suggestion that any of the jurors were attempting to evaluate the evidence to determine the facts, objectively and without regard to the effect it would have on the parties. Instead, the jurors did exactly what jurors will do in many cases if this proposed pernicious change is made: they will decide what they want to have happen as a result rather than analyze the evidence objectively to attempt to accurately determine the facts.

    Under the current system, society in general has decided what the results should be once the facts are determined. This is done in the form of various statutes that establish the rules which determine the final legal results based on the factual findings by the jury. There is no need to involve jurors in that process.

    If I were a plaintiff with an attractive, emotional case but poor facts on liability, this new rule would be exactly what I would want. I cannot imagine under any circumstance any defendant ever wanting this rule adopted.

    The system is not intended to provide greater opportunities for plaintiffs to recover or for plaintiffs to make defendants pay. It is intended to achieve, as best we can, truthful, honest, and objective determinations of the facts by jurors. After that, the law takes over and, presumably, truthfully, honestly, and objectively applies the rules to those facts to determine the final result. All of us are aware of many instances in which emotion, prejudice, and bias already distort verdicts. Introduction of one more means of allowing emotion, prejudice, and bias to affect the result is an error I hope does not occur while I am still practicing law.

    Terry E. Johnson
    Milwaukee

    Jury was 'Misled,' Result Unintended

    This letter is in response to the August article, "Examining Wisconsin Jury Instructions." A good friend of mine, an experienced insurance agent, sat on a jury a few years ago in a serious medical malpractice case. He explained to me what happened. During its deliberations, the jury felt that the wheelchair-bound plaintiff deserved substantial money because the treating physician had made a terrible mistake. They also felt that the doctor was a good man - they did not want his reputation to be damaged, or him to lose his license. They knew he was insured, because an insurer was a party defendant.

    The jury therefore proposed to award a large amount (in the millions), but find the doctor not negligent. That way the doctor's reputation would not be damaged, he could continue practicing medicine, and his insurer would pay the judgment.

    The insurance agent explained to the jury that he knew from his 40 years of insurance experience that if the jury found the defendant not negligent, the plaintiff would not recover anything. The jury did not know whether to believe him or not, so they decided to put the question to the judge. Their note to the judge inquired whether they were to complete the damage question if they found the doctor not negligent. Of course the judge properly instructed them that they must.

    The jury turned to the insurance agent, saying, "You are wrong, because the judge has told us to answer the damages question even if we find the doctor not negligent. You see, the insurer will pay even if we find the doctor not negligent." The insurance agent was not able to persuade the jury otherwise.

    Every trial attorney knows the rest of the story. The jury were not only anguished that they had not awarded the plaintiff his damages, but were angry with the court system for "misleading" them. This tragic result could have been avoided easily by requiring the judge to instruct the jury on the effect of their verdict.

    Edward Grutzner
    Beloit


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