Budget item would give more info to jurors

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A proposed one-sentence addition to jury instruction rules in Wisconsin may change the way civil cases involving contributory negligence are argued.

The proposed modification of Wis. Stat. 805.13(4) included in Gov. Jim Doyle’s state budget plan would allow the court to explain to jurors the effect their determination of negligence has on liabilities and awards for each side in a case.

“This will change the game,” said Wisconsin Defense Counsel (WDC) President Robert J. Lauer.

In an interview at WDC’s spring conference, Lauer indicated that the addition would put jurors in a “quasi-judicial” role.

“With jurors you have this dichotomy,” said Lauer, a civil litigator at Kasdorf, Lewis & Swietlik S.C. in Milwaukee. “A judge determines the law and jurors are fact finders. But in this kind of case, you tell them the impact of what they are going to do and they are result finders.”

Informed Jurors

Plaintiff’s attorney M. Angela Dentice said the revision would provide more “transparency” for jurors to accurately assign liability and appropriate damages.

She said in her experience talking with jurors after a case, many assume the impact their decision has on the parties.

“Rather than make incorrect assessments, my feeling is jurors should be apprised of the effect and correct information so when they make their decision, it is based on the best information,” Dentice said. “To do otherwise would mean they go back in a jury room and guess.”

Dentice, who litigates medical malpractice and personal injury cases, said she does not think the change would favor either plaintiff’s attorneys or defense counsel, because it would depend on the circumstances of each case.

Currently, 32 states have similar comparative negligence statutes to Wisconsin, according to the Wisconsin Association for Justice (WAJ). Only two, Wisconsin and Texas, do not inform the jury about how their findings of fault impact responsibility for damages.

But defense attorney Catherine M. Rottier said the change is decidedly “pro-plaintiff” because it contradicts current jury instructions which tell people to “free their minds of bias and prejudice.”

She noted that some jurors may be more sympathetic toward plaintiffs, especially in cases where a defendant need only be found one percent negligent to be responsible for total damages.

“It is counterintuitive to tell a jury to free their minds of bias and then say, ‘Oh, by the way, this is how to work it if you think the plaintiff is partially sympathetic to make sure the award goes to the person you want it to,’” said Rottier, of Boardman Law Firm in Madison.

“That’s just wrongheaded.”

Cutting both Ways

Dentice said the suggestion that jurors may decide a case on their feelings rather than fact is “unfair” and the rule change would be evaluated by both sides in a case.

“You may very well have a particular juror have some emotions in favor of a defendant,” Dentice said. “I think the important thing is to trust our jurors and jury assessments.”

Lauer said that defense attorneys would have to anticipate whether plaintiff’s attorneys may argue the point that if a defendant is not found a certain percentage negligent, there will be no recovery for their client.

But he also said a defense attorney may be able to use the argument to show that if someone is found even one percent negligent and they had no liability, that person could be responsible for the total damages.

“It’s going to cut both ways,” Lauer said.

Regardless of its impact, Lauer said the proposed change should not have been included in Gov. Doyle’s budget and if anything, needed to be introduced in the Legislature first.

The Joint Committee on Finance is in the process of reviewing the budget and committee clerk Charlene Vrieze said members have yet to address the jury information proposal.