President's Message

WDC Journal Edition: Fall 2003
By: Wayne Maffei - Cross, Jenks, Mercer & Maffei

It happened again. Once more, a jury left the courthouse stunned and disillusioned. This time, the jury was first puzzled and then concerned when they observed the plaintiff’s sobbing reaction to the verdict. Some of the jurors were themselves reduced to tears when they later learned that their verdict gave the plaintiff nothing. The jury believed they were awarding the young, head injured plaintiff a substantial award. The jury was wrong.

The Mission Statement of CTCW emphasizes this organization’s vital interest in a fair and impartial civil justice system. Whether juries should be instructed on the effect of special verdict responses is a recurring question and this column was nearly completed when it appeared as the topic of the Viewpoint article in the August 2003 Wisconsin Lawyer. In it the authors advocate instructing juries on the effect of verdict answers. The issue is an important one that challenges the integrity of our jury system.

As defense lawyers we are trained to argue that jurors are never to be told the effect of their verdict answers because a juror’s role is to find the facts irrespective of personal feelings and sympathies. We are assisted in this effort by a jury instruction that tells jurors that they should not concern themselves with whether their answers are favorable to one party or the other or even with what the final result of the lawsuit may be. We know however, that many times, jurors do not follow this instruction. Perhaps it is impossible.

There are good arguments supporting the current rule. It is the province of the judge to apply the law to the facts, not the jury. Explaining the effects of special verdict answers to jurors invites them to consider improper factors and to manipulate answers in order to accomplish what they perceive as a just result. And, if jurors are to make decisions based upon their perception of what is just should they not be given all the facts, including information now barred such as collateral source evidence? The very purpose of special verdicts, to have the facts, not necessarily the outcome, determined by a fair and impartial jury is defeated by encouraging consideration of verdict effects. As defense counsel in civil cases, we assume that when juries attempt to control the outcome by manipulating special verdict answers, the result will invariably be adverse to our clients’ interests.

The proponents of disclosure argue that we fool only ourselves in thinking that juries do not consider the outcome in answering special verdicts. They argue that our failure to provide juries with accurate information regarding the effect of verdict answers not only invites speculation, it requires speculation. They point out that our efforts to admonish juries to set aside feelings of sympathy and just answer the questions posed do not work, and we should accept this as a human limitation and insure that their decisions at least are based on accurate information. They argue that a system that makes verdict outcomes dependent on whether a single juror has an accurate knowledge of tort law is a system in need of repair.

Whether the historical defense concern that instructing juries as to the effects of verdict answers will result in adverse results is justified is an open question. The Wisconsin Lawyer article authors suggest the answer is no and cite as evidence Wisconsin’s experience after adoption of the direct action statute and a study of other states which found no empirical evidence that lifting blindfold rules in comparative fault cases resulted in higher verdicts.

What is clear is that there is a cost to our insistence that jurors decide issues in the dark. The cost is the bitter dissatisfaction that jurors experience should they believe that their time and effort was frustrated by a system that suddenly seems incomprehensible and unjust. The cost is a number of citizens who believe that there is something seriously wrong with the system. That is a matter of concern to all of us.