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As a Wisconsin Personal Injury Trial Lawyer, one of the most common complaints I hear from jurors after a case is that they are upset and frustrated with not being told of the ramifications of their answers to questions on the final verdict form. In Wisconsin, the law prevents the judge or the lawyers involved in the case to explain, in plain language, the effect of jurors answers on the ultimate outcome of the case.
An example of a personal injury verdict form is as follows:
QUESTION 1: Was The Defendant Negligent? If your answer to Question 1 was "yes," then answer Question 2, otherwise go to Question 3.
QUESTION 2: Was The Negligence Of The Defendant A Cause Of Plaintiff's Injuries? Regardless of how you answered Question 1 or 2, answer Question 3.
QUESTION 3: Was The Plaintiff Negligent? If your answer to Question 3 was "yes," then answer Question 4, otherwise go to Question 5.
QUESTION 4: Was The Negligence Of The Plaintiff A Cause Of Her Injuries? If you answered yes to Questions 1-4, then answer Question 5, otherwise go to Question 6.
QUESTION 5: Assign to each party such percentage, or part of 100%, which you find is attributable to each party:
Defendant _________% Plaintiff _________% TOTAL = 100%
QUESTION 6: What Sum Will Reasonably Compensate The Plaintiff For Her Injuries? Fill in the appropriate amounts:
Past Medical Bills $___________ Future Medical Bills $___________ Past Lost Wages $___________ Future Loss of Earning Capacity $___________ Past Pain, Suffering & Disability $___________ Future Pain, Suffering & Disability $___________
The following gives an overview of the implications that each question and jury answer may have on a personal injury case.
QUESTION 1: Was The Defendant Negligent?
This question is usually relatively easy to answer. Personal injury attorneys rarely take cases unless they can prove the defendant was negligent. Negligence is simply the failure of the defendant to use ordinary care under the particular circumstances. Negligence is NOT the intentional harming of someone else. Another way to describe negligence is "Conduct that falls short of what a reasonable person would do to protect another individual from foreseeable risks or harm."
What the jury is not told is that if they answer "No" to this question, then the plaintiff recovers no money, regardless of how the jurors may have answered Question 6.
No Negligence = No Recovery
QUESTION 2: Was The Negligence Of The Defendant A Cause Of Plaintiff's Injuries?
This question is also usually easy to answer, but many times the jury is confused by this question and incorrectly answers it "no," when in fact they should have answered it "yes." Rarely will a personal injury attorney take a case where the negligence of the defendant didn't cause at least one of the plaintiff's injuries, but many insurance company lawyers have made a very nice living by confusing jurors on this question.
When answering this question, jurors must pay careful attention to the exact language of the question. The key word in the question is one simple letter "A." The question does not ask if the negligence of the defendant was the sole cause of all of plaintiff's injuries. Instead, the question simply asks whether the defendant's negligence was "A" cause of any of the plaintiff's injuries. The plaintiff's injuries may have many causes, but if the negligence of the defendant was one of the causes, then this question must be answered "Yes."
Under Wisconsin law if the negligence of the defendant was a "substantial factor" in producing any of the plaintiff's injuries, then it can be said the defendant's negligence "caused" the injuries. Although there could be hundreds of "substantial factors," if the defendant's negligence was one such factor, then the juror must answer "yes.".
What the jury is not told is that if they answer "No" to this question, then the plaintiff recovers no money, regardless of how the jurors may have answered Question 6.
No Cause = No Recovery
QUESTION 3: Was The Plaintiff Negligent?
Similar to Question 1, the jury must decide whether the Plaintiff was negligent. Many times jurors are confused by this question, because they have heard that someone is partially negligent for just being involved in an accident. This is not true and this is not the law in Wisconsin. The defendant must actually present evidence that shows the Plaintiff was negligent. Driving down the road in a car and following the rules of the road does not, by itself, establish that a Plaintiff was negligent.
QUESTION 4: Was The Negligence Of The Plaintiff A Cause Of Her Injuries?
If the jury answers Question 3 "yes," then they must answer this question. The same considerations should be taken into account as when answering Question 2. If the Plaintiff was actually negligent, then the jury must determine if the Plaintiff's negligence actually caused any of her injuries. If the jury answers Question 3 and Question 4 "yes," then they must attribute percentages of negligence to each party.
QUESTION 5: Assign to each party such percentage, or part of 100%, which you find is attributable to each party:
Jurors often complain that this question calls for nothing more than speculation on their part, but nevertheless Wisconsin law requires the jury to answer it. The jury must allocate a percentage of negligence to each party, and that percentage must equal 100%. The jury is not told the ramifications of their answer.
Wisconsin follows the modified comparative fault rule, which means that a Plaintiff's damages, as determined in Question 6, will be reduced by the percentage of fault attributed to the Plaintiff in the jury's answer to Question 5. This rule also means that if a Plaintiff is determined to be 51% at fault or more, then they recover nothing, regardless of the damages awarded in Question 6.
As an example, if the Plan tiff is entering an intersection when the light is green and then makes a left hand turn when the light is yellow, while the defendant entered the intersection when the light was yellow and crashed into the Plaintiff when the light has turned red, jurors can apportion percentage of fault to each of the drivers. An example fault determination in such a case could be 10% fault on the Plaintiff and 90% of fault on the Defendant who had entered on yellow and struck the Plaintiff on red. The injured Plaintiff's total damage award would be reduced by 10% by the judge after the jury was dismissed. The jury is never told of this reduction during the case and many times jurors mistakenly reduce damages on their own in answering Question 6.
QUESTION 6: What Sum Will Reasonably Compensate The Plaintiff For Her Injuries?
This question must be answered by the jury regardless of how they answered any of the other questions. The question of reasonableness of the compensation should be answered in a manner that makes the Plaintiff whole for ALL of their harms and losses suffered as a result of the incident. Jurors should not reduce these damages by any portion of fault they believe is attributable to the Plaintiff, because the judge will do this automatically after the jurors are dismissed.
I routinely hear from jurors that were frustrated because they couldn't help but take the Plaintiff's own negligence into account when calculating damages, then they learn that the judge had further reduced the juror's award of damages. Unfortunately, our legislature and court system has decided that jurors should not be told of the effect of their verdict.
Recently, the legislature attempted to introduce a bill that would allow for transparency of jury verdicts, but the Wisconsin big business and insurance lobby successfully prevented the passage of this legislation. This begs the question, why wouldn't big businesses and insurance companies want jurors to know the ramifications of their decisions?
Wisconsin Personal Injury Attorney Randall Rozek provides legal services to injury victims throughout the state. His firm, Rozek Law Offices, provides free books to Wisconsin Injury Victims in order to educate them on Wisconsin Personal Injury Law, as well as the process of hiring a Wisconsin Personal Injury Lawyer.