Vol. 76, No. 8, August 2003

Examining Wisconsin Jury Instructions

by Hon. Robert E. Kinney & Jordana Thomadsen

A videotape frequently shown at Judicial Education seminars in Wisconsin depicts a teacher addressing students on the first day of class. The teacher begins:

"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 their verdicts.

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 approach.⁸

The Wisconsin Rule

Jurors serving in Wisconsin personal injury cases are instructed as follows:

"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

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 court."²²

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 the jury."²⁴

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

The Debate

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 only.

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 awards.²⁹

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 duty.

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.

Conclusion

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.

Endnotes

¹Ryan v. Rockford Ins. Co., 77 Wis. 611, 46 N.W. 885, 886 (1890).

²1931 Wis. Act 244.

³Id.

⁴Alabama, Maryland, North Carolina, Virginia, and Washington D.C. retain the contributory negligence defense.

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 (1971).

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. 2001).

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).

¹⁴Id. (quoting Anderson v. Seelow, 224 Wis. 230, 234, 271 N.W. 844, 846 (1937)).

¹⁵Id. at 197, 234 N.W.2d at 329.

¹⁶Id. at 198, 234 N.W.2d at 329-30.

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.

¹⁹Id.

²⁰Id. at 193, 579 P.2d at 690.

²¹224 Kan. 539, 582 P.2d 271 (1978).

²²Id. at 551, 582 P.2d at 280.

²³82 N.J. 336, 413 A.2d 322 (1980).

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.

²⁸Id.

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 follows:

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%).

Wisconsin Lawyer