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
Wisconsin Lawyer
